Although the law on flexible working does not set out a specific procedure for employers to follow, it says they must decide within three months of an application, unless they agree something else with the employee. In Walsh v Network Rail Infrastructure Ltd, the EAT held that, just because an employee agrees to attend and participate in an appeal on a specific date outside the three-month decision period, does not mean that they have agreed to an extension of the decision period.
The member’s union, the RMT, instructed Thompsons to act on his behalf.
Basic facts
Mr Walsh submitted a flexible working application on 11 February 2019 which was rejected by letter dated 7 March. He appealed against the decision on 13 March and applied to ACAS on 4 April for an early conciliation certificate which was issued the same day.
According to Network Rail’s flexible working policy, the decision period in which they could make a final determination expired on 10 May, unless the parties agreed something different. After extensive correspondence between Mr Walsh and Network Rail in terms of trying to fix a date for the appeal hearing, it was eventually set for 1 July. Notification was sent out to Mr Walsh on 24 June.
However, on 25 June he submitted his tribunal claim, arguing that his application for flexible working had not been dealt with reasonably, had been determined on incorrect facts and that the process had not concluded before the end of the decision period. The appeal was finally held on 1 July, and he was unsuccessful.
Relevant law
Although the Employment Rights Act 1996 does not specify the procedure for considering a flexible working application, section 80G(1B) states that the decision period must be: "… (a) the period of three months beginning with the date on which the application is made, or (b) such longer period as may be agreed by the employer and employee".
Tribunal decision
The tribunal held that, by explicitly agreeing the date of 1 July for the appeal hearing, Mr Walsh had implicitly agreed that the process could be extended until at least that date. As Mr Walsh had submitted his claim before the expiry of the decision period, the tribunal had no jurisdiction to hear it.
Mr Walsh appealed.
EAT decision
Upholding the appeal, the EAT said that, just because an employee agrees to attend and participate in an appeal on a specific date outside the three month-decision period, does not mean that they have automatically agreed to an extension of the decision period.
Instead, it held that: “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. The appeal might remedy any substantive defect in the way the request for flexible working was dealt with but that does not mean that the decision period has been extended. For the decision period to be extended there must be an agreement for an extension”.
As there was nothing in law to stop the tribunal from hearing the claim, the EAT remitted the matter to the tribunal to decide the substantive claim that the decision to refuse Mr Walsh’s application for flexible working, and to refuse the appeal, was not dealt with in a reasonable manner and was based on incorrect facts.
Comment
This case confirms that employers must seek specific agreement from employees to extend a decision period when considering requests for flexible working, and they cannot bypass that requirement by simply arranging the decision meeting outside the three-month period. As the EAT confirmed in this case, a failure by the employer to agree an extension of time will put them in breach of the regulations.