The Employment Appeal Tribunal in Walsh v Network Rail Infrastructure Ltd recently held that the Tribunal had made an error in its finding that an employee had agreed to extend the decision period when he agreed to attend an appeal after the expiry of the decision period.
Key points about flexible working requests
Under the current flexible working regime, an employee’s request for flexible working should be considered within a period of 3 months from the date of their request. This 3-month period is to include any appeal raised by the employee.
The decision period can be extended by mutual agreement to accommodate things like trial periods to see if the request could work in practice.
Before the end of the decision period, an employer should set out their decision either accepting the request or refusing it and confirming the legal reasons why.
An employee can bring a number of claims if their request is refused such as the reason (or reasons) for refusal was not legitimate in the circumstances or that the decision was not delivered within the 3-month period.
The employee submitted his flexible working request on 11 February 2019. The decision period for this would have ended on 10 May 2019 and during this time the employee’s request was refused.
The employee put in an appeal against the employers decision to refuse the request and following communication regarding the appeal, the employer confirmed on 24 June 2019 that the appeal would be held after the deadline on 1 July 2019.
The employee submitted his claim to the Employment Tribunal on 25 June 2019 on the basis that the process was not concluded within the 3-month decision period, the employer failed to deal with the process in a reasonable manner and the refusal was based on incorrect facts.
The Employment Tribunal confirmed that it could not deal with the claim as the agreement for the appeal hearing to be held on 1 July 2019 amounted to an agreement by the employee to extend the decision period.
On appeal, the Employment Appeal Tribunal (EAT) confirmed that the Tribunal had made an error and that it did have jurisdiction to deal with the claim on the basis that it is clear that there must be an agreement to extend the decision period. In the circumstances, the Appeal Tribunal confirmed that there was no such agreement between the parties but simply an agreement to hold the appeal on a specific date.
In his Judgment, Judge Tayler confirmed that there was nothing implicit in an employee agreeing to attend an appeal hearing that means they must have agreed to an extension of the decision period.
What to take from the decision?
This case highlights the importance for an employer to ensure that they deal with the request within a reasonable time.
We recommend that if you are presented with a flexible working request that you deal with this as soon as possible so that you can fully utilise the 3-month decision period and can accommodate an appeal process if the request is refused.
Being proactive with the request as early as possible will allow you to fully consider the request and if need be, consider alternatives to the request proposed. You also avoid being in a situation where you feel rushed to make a decision which might not be right for the business.
If you think that you are going to need additional time to consider the request before making a decision, we recommend that you seek to agree with your employee an extension of the 3-month period as early as possible explaining your reasons why. For example, you may wish to carry out a trial period to see if the proposed measures will work. If an agreement is reached it is important that you record this clearly setting out that it is an agreement to extend the initial 3-month decision period.
Please feel free to contact us if you are presented with a flexible working request. We can guide you on how to approach the request as well as assist with the decision-making process ensuring that you mitigate any risks of an employee bringing a claim.