Flexible Working - The Importance of Paying Close Attention to the Statutory Rules
The statutory procedure requires flexible work requests (including appeals) to be decided within three months of the date of the request (Decision Period). There is an option to extend the Decision Period by mutual agreement.
In the case of Walsh v Network Rail Infrastructure Ltd, the Employment Appeal Tribunal (EAT) found an employee had not implicitly agreed to extend the Decision Period when an appeal meeting was held after the three month statutory deadline had passed.
The Case and Appeal
The Claimant, Mr Walsh, submitted a flexible working request on 11 February 2019. The request was rejected by his employer, Network Rail, and Mr Walsh appealed. The Decision Period ended on 10 May 2019, however correspondence regarding the appeal was still ongoing. On 24 June 2019 Network Rail confirmed an appeal would take place on 1 July 2019 (when it was rejected).
On 25 June 2019, before the appeal took place, Mr Walsh presented his Tribunal claim on the grounds that Network Rail had failed to deal with his application in a reasonable manner. The Tribunal held that it did not have jurisdiction to hear the claim, because it said the agreement to hold the appeal on 1 July 2019 involved an implied agreement to extend the decision period.
A More Specific Agreement Required
The EAT has now held that the Tribunal did have jurisdiction to hear the claim. The statutory scheme is clear that any extension to the Decision Period must be by agreement. The fact the Claimant agreed to the appeal taking place on 1 July 2019 did not constitute an implied agreement to extend the Decision Period. The EAT went on to add that specific agreement to extend is needed in order to avoid confusion.
Changes to Flexible Working on the Horizon
Flexible working rights may soon be changing. Most notably, there is a proposal to make the right to request flexible working a day-one right. The consultation has also asked for views on the three month Decision Period and we await the Government's response.
However the flexible work regime may change in future, this case highlights the importance of strictly adhering to the statutory framework for considering a flexible work request. On receipt of a request, it is sensible to plan timescales for considering the request (including a possible appeal), and to ensure appropriate personnel are lined up for each stage of the process, so as not to cause unnecessary delay. Where it is necessary to extend the Decision Period for any reason, express mutual agreement should be obtained in good time before the deadline expires.