Thu 06 Jan 2022

Agreement to extend decision period for flexible working request must be clear

Employers must deal with statutory flexible working applications within a three month "decision period".  A recent case has shown that where that period needs extended - for example to allow an appeal to take place - the employer needs to get agreement from the employee.  Without agreement employers risk claims for failure to deal with the application reasonably or in a timeous manner.  

In Walsh v Network Rail Infrastructure Limited the claimant submitted a flexible working application.  The application was rejected and the decision period came to an end before the parties could agree on a date for an appeal.  In the meantime, the claimant contacted ACAS, obtained an early conciliation certificate and lodged an application to the employment tribunal.  The internal appeal was then heard and rejected.

The employment tribunal concluded that the agreement to hold the appeal impliedly involved an agreement to extend the decision period.  The claimant had attended and taken part in the appeal.  On that basis the claim had been submitted before the expiry of the extended decision period which meant the tribunal did not have jurisdiction to hear it.

On appeal, the Employment Appeal Tribunal (EAT) considered whether the tribunal had been correct to conclude that an agreement - reached after the expiry of the three-month decision period - that the appeal would take place necessarily involved a retrospective agreement that the decision period be extended.  The EAT noted that the statute does not require an agreement to extend the decision period to be in writing, nor that it be express or implied.  However, it did consider that the extension of the decision period is a separate matter from an agreement, reached after the expiration of that decision period, to attend an appeal.  In the circumstances of this case, the EAT concluded there had been no agreement to extend the decision period and therefore the tribunal did have jurisdiction to hear the substantive claims.  The case was remitted back to the employment tribunal to decide those claims.

Although the statute does not require agreement to an extension to the decision period to be in writing, employers would still be wise to obtain this if it seems likely a final decision will not be made within the three-month timescale.  Doing so not only avoids any confusion arising between the parties in respect of this matter, it also prevents these types of claims being made.

While this case related to a procedural defect, it is important that employers also fully consider the merits of flexible working applications.  In some circumstances where flexible working applications are not dealt with properly indirect sex discrimination claims can arise, with the potential for uncapped compensation.   With awards of £40,000 and nearly £185,000 being made in two separate cases over the past 12 months this is something that employers need to ensure they are getting right.


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