Flexible Working Request: agreement by employee to attend appeal hearing did not extend the decision period for the employer.

January 10th, 2022

In the case of Walsh v Network Rail Infrastructure Ltd, the EAT held that a tribunal had erred in its finding that, by agreeing to attend an appeal hearing, an employee had implicitly agreed to extend the decision period for consideration of his flexible working request.

Right to request flexible working

Part 8A of the Employment Rights Act 1996 sets out an employee’s right to request flexible working to their employer. Such a request can include an alteration to an employee’s hours and times of work, as well as their place of work as between the employee’s home and the employer’s place of business. Requests for the latter have grown increasingly common as more people find a continuation of a work-from-home arrangement desirable even (eventually) post-pandemic. The employer must deal with the request in a reasonable manner and within the statutory decision period – currently three months from receipt of the request or such longer period as may be agreed by the parties. Failure by the employer to comply with this decision period can lead to a claim by the employee to the Employment Tribunal.

The decision of the Employment Tribunal

In this case, Mr Walsh submitted a flexible working request to his employer, Network Rail, on 11 February 2019. This application was rejected by Network Rail in March 2019, however Mr Walsh was given an opportunity to appeal this decision. The Tribunal found that there was extensive correspondence between the parties in an attempt to fix a date for the appeal hearing, during which neither party gave any thought to the deadline for the decision period, which was 10 May 2019. An agreement was reached for Mr Walsh to attend an appeal hearing on 1 July 2019. Prior to attending the appeal, Mr Walsh submitted his claim to the Employment Tribunal arguing, amongst other things, that his flexible working request was not concluded before the decision period had expired.

The Employment Tribunal dismissed Mr Walsh’s claims. In the Tribunal’s view, the agreement that an appeal hearing should take place after the original deadline for the decision period necessarily also involved an implicit and retrospective agreement that the decision period should be extended. Mr Walsh appealed this decision to the Employment Appeals Tribunal (‘EAT’).

Appeal to the EAT

The EAT, allowing Mr Walsh’s appeal, stated that the key issue was this:

“was the Tribunal correct in law to conclude that an agreement that an appeal take place on a specific date after the expiration of the decision period necessarily involved a retrospective agreement that the decision period be extended?”

EJ Taylor concluded that the Tribunal was not correct in reaching this conclusion. An agreement to attend an appeal hearing after the expiration of a decision period is a separate matter from whether there has been an agreement to extend the decision period. The judge considered that there may be any number of reasons why the parties may wish to hold an appeal hearing, even if an extension to the decision period has not been agreed.  For instance, they may want to resolve differences between the parties or to further discuss the reasoning behind the decision. In his words; ”An agreement to attend an appeal after the expiry of the decision period is no more than that, an agreement to attend the appeal, in this case on an agreed date.”

With this issue now decided, the case has been remitted back to the Tribunal in order to consider the merits of Mr Walsh’s claims in more detail. What we can however learn from the EAT’s judgment is that it is strongly advisable (if not a requirement) that any agreement to extend the decision period is made explicitly between the parties. EJ Taylor also considered, and this should be noted well by employers and employees, that “an agreement to extend the decision period requires that the period of the extension be agreed.” (emphasis added).

This blog was written by Michael Green, Paralegal at didlaw.

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