Employment Law Cases
Flexible working and agreements to extend
Walsh v Network Rail Infrastructure Ltd
An employee had not agreed to an extension to the normal three-month time frame for deciding flexible working requests when he agreed to attend an appeal outside that three-month period.
Where an employer receives a flexible working request, it must consider it reasonably and complete the flexible working process, including any appeal, within a ‘decision period’ of three months beginning with the date of the request (ERA, s. 80G). The employer and employee can however agree to extend the decision period. An employee can only bring a tribunal claim about a breach of the flexible working requirements after the relevant decision period has expired (ERA, s. 80H).
Mr Walsh submitted a flexible working request to his employer which was rejected. He appealed. There was correspondence about the date of the appeal hearing and meanwhile the decision period expired. Eventually, Mr Walsh was asked to an appeal hearing which took place after the three-month decision period had expired. Before the appeal hearing, he lodged a tribunal claim alleging breach of the flexible working regulations, including that the process hadn’t been concluded within the decision period.
The tribunal held that an agreement that an appeal hearing take place on a date after the expiry of the decision period necessarily involves an agreement that retrospectively, the decision period should be extended. Therefore his claim was premature and the tribunal didn’t have jurisdiction to hear it. Mr Walsh appealed.
The appeal was allowed.
It did not follow that, by agreeing to attend the appeal, Mr Walsh had also agreed to an extension of the decision period. For a valid extension to the decision period, the employee would have to agree both to this and to the duration of any extension.
The EAT recognised that there are several reasons why parties might wish to hold an appeal hearing outside the decision period, even if there is no agreement to extend the decision period. For instance, the appeal hearing might resolve the differences between the parties, or it could deal with substantive issues about whether the application had been dealt with reasonably. There was nothing implicit in an employee agreeing to attend an appeal hearing that necessarily meant there were agreeing to the decision period being extended.
As Mr Walsh brought his claim more than three months after his initial flexible working request, and no extension had been agreed, the tribunal should have considered the claim on its merits.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/2020-000724.html
This case is a useful reminder that failure to adhere to the time limits can result in a tribunal claim. However, it is also important to remember that a tribunal cannot order an employer to agree to the request. If the employee succeeds in such a claim, the tribunal can make a declaration to that effect, and may also:
- make an order that the employer reconsider the request (in which case the flexible working provisions will apply once more, as if a new request to work flexibly had been made on the date of the order for reconsideration) and/or
- award such compensation as the tribunal considers just and equitable, up to a maximum of eight weeks’ pay which is capped currently at £544 a week