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Flexible working applications: Employers must have explicit employee consent to any extension of a flexible working decision period

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By Hilary Larter & Ceri Fuller


Published 04 February 2022


The EAT has overturned an employment tribunal judgment, finding that an employee’s agreement to attend a flexible working appeal meeting outside the three month statutory time limit for making a decision did not amount to consent to an extension of the decision period.


The facts 

Employers have a three month decision period in which to consider flexible working requests which have been made under the statutory regime. The decision period can be extended with the employee’s consent. Claims for breach of the statutory requirements in relation to flexible working requests cannot be brought until either the employer has notified the employee of its decision on the request or the decision period (including any extension) has ended.

In this case, Mr Walsh submitted a statutory flexible working request to his employer, Network Rail. His request was rejected and he appealed the decision. Network Rail and Mr Walsh tried to agree a hearing date for the appeal, and the agreed date fell outside the three month statutory decision period. Before the appeal hearing date, Mr Walsh brought a tribunal claim, alleging that his flexible working request had not been dealt with reasonably, that it had been determined on incorrect facts, and that the process had not concluded before the statutory decision period ended. His appeal against Network Rail’s decision was subsequently rejected.

The employment tribunal held that, by agreeing to attend an appeal hearing after the three month statutory decision period, Mr Walsh had agreed to extend the decision period. His tribunal claim was rejected because it had been made before the end of the decision period and was therefore premature.

Mr Walsh appealed to the EAT, which overturned the tribunal’s decision. The EAT held that in order to extend the decision period, Mr Walsh would have had to agree both to an extension of the decision period and to the duration of the extension. The EAT did not consider that Mr Walsh’s agreement to attend the appeal hearing outside the three month statutory period was the same as an agreement to extend to the decision period, and his agreement to do so was not an agreement on the duration of the extension. His claim was therefore remitted to the employment tribunal.


What does this mean for employers? 

Employers must make sure that employees explicitly consent to any extension of the three month statutory decision period, bearing in mind that any appeals should also be concluded within the statutory decision period. Employers should ensure there is a written record of this express agreement. Flexible working policies should also reflect this requirement, to ensure that managers, as well as employees, understand what’s required.

It is relatively unusual for employees to bring stand-alone claims for breach of the flexible working procedure. Usually it is an adjunct to a more valuable indirect sex discrimination claim. However, this case shows that regardless of the limited compensation available these types of cases do get issued. It is much less costly for employers to get their procedures right than to face the prospect of expensive litigation.


Mr J Walsh v Network Rail Infrastructure Ltd