Why care
The statutory process for dealing with a flexible working request requires the employer to consider the request within a period of three months beginning with the date of the request. Any appeal should also be dealt with within this 3 month window. However, the employer and employee can 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 so establishing whether there has been an extension will be important when considering the time limits for bringing a claim.
Facts
In the case of Mr J Walsh v Network Rail Infrastructure Limited, Mr Walsh submitted a flexible work request on 11 February 2019 and was informed that his application had been rejected in a letter dated 7 March 2019. He appealed against the decision on 13 March 2019.
In this case, the 3 month decision period was due to end on 10 May 2019. Mr Walsh agreed to attend an appeal hearing on 1 July 2019 in a letter sent on 24 June 2019. Network Rail heard the appeal on 1 July 2019, as agreed, and dismissed it.
On 25 June 2019, before the appeal was heard, Mr Walsh submitted a claim to an employment tribunal arguing, amongst other things, that his flexible work request had not been dealt with in the 3 month timeframe. The tribunal held that the agreement to hold an appeal on 1 July 2019 naturally entailed an agreement to extend the decision period beyond the statutory timeframe of 3 months. As a result, Mr Walsh had submitted his claim to the tribunal prematurely, prior to the expiry of the decision period, and the tribunal had no jurisdiction to hear the claim. Mr Walsh appealed to the Employment Appeal Tribunal (EAT).
Decision
The EAT found that there was a distinction between agreeing to attend an appeal meeting outside the 3 month timeframe, and an agreement to extend the 3 month decision period. Explicit agreement to a longer timeframe for the decision period was necessary for the statutory extension to apply.
The EAT noted that the relevant legislation is clear; there must be an agreement for the decision period to be increased. They reasoned that there is nothing implicit in an agreement to attend an appeal hearing outside the 3 month timeframe that means the employee has also agreed to an extension of the decision period itself.
Further, the EAT considered the practical consequences of the Tribunal's original decision that agreeing to an appeal hearing outside the 3 month period did amount to an agreement to extend the 3 months. Such a decision would create a secondary issue as to how long the decision period had been extended for. Would it be extended to the day of the appeal only, or beyond?
Why the case matters
Whilst the facts of the case concerned a flexible work request made pursuant to statute, the case acts as a reminder that clarity about timeframes is important in other contexts, for example in relation to grievance or dismissal procedure This is the case whether or not such procedures are contractual (which is less common) or non-contractual. Not adhering to timescales may affect the fairness of any subsequent dismissal, it may affect time limits for the purpose of bringing claims, and it may also give rise to arguments about the status of the contractual relationship during the decision or appeal period. Obtaining an employee's explicit agreement to any extension, and evidencing this in writing, may be the best approach. Employers should bear this decision in mind as we move into an era in which flexible working requests are likely to increase.
With thanks to Kate Hamblin for her contribution.
