The Employment Appeal Tribunal (EAT) has considered whether a tribunal could hear a claim for an employer’s failure to allow an employee’s flexible working request, which was submitted prior to the date for the employee’s appeal hearing.

Walsh v Network Rail Infrastructure Ltd, EA-2020-000724

Facts

The claimant’s flexible working application was rejected by his employer so he submitted an appeal. The appeal was eventually confirmed for 1 July 2019, beyond the three month statutory decision period that had expired on 10 May 2019. The claimant submitted a tribunal claim on 25 June 2019, which was rejected by the tribunal on the grounds that it did not have jurisdiction to hear the claim. It found that the agreement to hold the appeal hearing on 1 July was an agreement between the parties to extend the decision period. The claimant’s employer rejected his appeal against its decision to refuse his flexible working request on 1 July.

The claimant appealed to the EAT.

EAT decision

The EAT has upheld the claimant’s appeal, finding that the tribunal did have jurisdiction to hear his claim. In order for the decision period to be extended under the statutory scheme, there must be agreement between the parties. Agreement to the appeal hearing being held on 1 July did not represent an agreement on the part of the claimant to extend the statutory decision period. Specific agreement to the period of the extension is required, in order to avoid confusion on whether it is the extension that has been agreed, or simply an agreement to the date for the appeal to be heard.

Consequences of this decision

This decision means that the employment tribunal will have jurisdiction to hear the claimant’s substantive claim: that the employer 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.

Employers should ensure that when dealing with a flexible working application, if there is any prospect of the decision (including any appeal) not being concluded within the standard three month decision period, an extension must be agreed with the employee in advance of expiry of the decision period.

The Government’s recent consultation on its proposals to extend the existing statutory right to request flexible working closed for submissions on 1 December 2021, and its response is now awaited. One of the proposals under consideration is whether to reduce the current time period for a response to a flexible working request. See our September Quick Fire bulletin for more information on the proposals.

These articles are from the December 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact a member of Birketts’ Employment Team.