As a reminder, the statutory scheme for flexible working requests requires an employer to notify an employee of its decision (including its decision on any appeal) within the decision period. The decision period is three months beginning with the date of the employee’s request or, if longer, such time as agreed by the parties. A tribunal claim cannot be pursued until the decision period (including any agreed extension) has ended.
Mr Walsh submitted a flexible working request which was rejected by his employer, Network Rail Infrastructure. He appealed the decision and the appeal was eventually held on 1 July 2019, a few weeks after the three month statutory decision period had expired.
Mr Walsh pursued a tribunal claim on 25th June 2019 which was rejected on the grounds that the tribunal had no jurisdiction to hear the claim due to the fact that the agreement to hold the appeal hearing on 1 July 2019 was an agreement between the parties to extend the overall decision period.
Mr Walsh successfully appealed the decision. The EAT held that the tribunal did have jurisdiction to hear his claim on the basis that in order for the decision period to be extended under the statutory scheme, there must be specific agreement between the parties. Simply agreeing to a date set for an appeal is not implicit agreement that the statutory decision period has been extended. This case can now be returned to a tribunal to hear Mr Walsh’s substantive claim: that Network Rail Infrastructures failed to deal with the application in a reasonable manner, that the rejection was based on incorrect facts, and that the process had not concluded within the decision period.
This case serves as a reminder to employers to ensure that if it is not going to be possible to conclude a flexible working request process (including any appeal) within the three month decision period, an extension must be expressly agreed with the employee before the expiry of the decision period.