Flexible working request and extension to decision period


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The Employment Appeal Tribunal (EAT) has held that a tribunal had erred when it found that an employee had implicitly agreed to extend the decision period for consideration of his flexible working request in Walsh v Network Rail Infrastructure Ltd.

Under the statutory scheme an employer is required to notify an employee of its decision in relation to the employee's flexible working request, including its decision on any appeal, within the decision period. The decision period is three months beginning with the date of the employee's request, or such longer period agreed by the parties. An employee may then bring a tribunal claim on a number of grounds, but it can't be brought until either the employer has notified the employee of its decision, or the decision period has ended.

On 11 February 2019 the claimant submitted a flexible working application which Network Rail rejected and the claimant appealed the decision. Correspondence regarding the appeal followed (the decision period ended during this time on 10 May 2019), and on 24 June 2019 Network Rail confirmed that an appeal would take place on 1 July 2019. The claimant presented his tribunal claim on 25 June and the tribunal rejected it on the basis that it didn't have jurisdiction to hear the claim because the agreement to hold the claimant's appeal on 1 July was an agreement to extend the decision period.

The EAT held that the tribunal had jurisdiction to hear the claim. The statutory scheme makes it clear that there must be an agreement to extend the decision period, but an agreement to an appeal on a specific date did not necessarily involve an agreement to extend the decision period. While attending an appeal outside the decision period might resolve the differences between the parties, there is nothing implicit in an employee agreeing to do so that means that the employee must have agreed to an extension of the decision period.

Take note: It's clear from the decision in Walsh that there must be a clear agreement to extend the decision period for considering a flexible working request. An appeal date which falls outside the 3-month decision period will not constitute a valid extension. It's worth noting that the government recently consulted on changes to the right to request flexible working so the existing statutory scheme may be subject to change. To find out more about the consultation and the results of the flexible working survey we sent out read our bulletin 'Will the flexible working regime be changing?

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