• rradar

Extending the flexible working decision period - What employers should know.

Updated: Feb 1

Under the Employment Rights Act 1996, employees who want to work flexibly have the right to ask their employer for a change to their contractual terms and conditions of employment if they have worked for their employer for more than 26 weeks at the date of making the request. The employer must give the request reasonable consideration. The flexible working process, including any appeal, expires three months after the date of the request being made. This is known as a decision period. If an employee wants to bring a claim in the employment tribunal about a breach of the Flexible Working Requirements, they must do so only once the decision period has expired. It is, however, possible for the decision period to be extended, if both the employer and employee agree.

A recent case in the Employment Appeal Tribunal has shed some light on the decision process and the ways in which it can be extended.

What happened?

Mr Walsh is an Ops Technician, working for Network Rail Infrastructure. On 11th February 2019, he made an application to work flexibly. This meant that Network Rail had until 10th May to make a decision about whether to accept or reject it. They didn’t need that long to decide; they rejected the request on 7th March, and Mr Walsh appealed their decision on 13th March.

On 4th April, he applied to ACAS and there followed extensive correspondence trying to arrange a date for the appeal hearing. The delay meant that it did not take place until after the decision period had ended.

Mr Walsh was contacted by letter to advise him that the date would be 1st July, and on 24th June he agreed that it should go ahead. However, as the EAT said,

prior to attending the appeal, Mr Walsh submitted his claim to the Employment Tribunal on 25th June 2019. He asserted 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 decision period had expired.”

Nevertheless, the appeal proceeded on 1st July and it was dismissed. Mr Walsh was informed of its outcome the same day.

What does the law say about the decision period?

The decision period is defined by section 80G(1B) of the Employment Rights Act 1996 as being: "… (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."

Section 80G(1C) of the Act says that an agreement to extend the decision period may be made before it ends, or with retrospective effect, before the end of a period of three months that starts on the day after that on which the decision period came to an end.

Section 80H(3) of the Act says that a complaint can’t be made to the Employment Tribunal before the decision period has ended.

The Act doesn’t say whether an agreement to extend the decision has to be in writing or that it should be expressly stated rather than just implied. However, what it does say is that there must be an agreement that the decision period should be extended.

What the tribunal said

At the Employment Tribunal, Mr Walsh’s claims were dismissed. They said that since Mr Walsh had agreed to holding the appeal hearing after the end of the official decision period, he had effectively agreed to extend the period; it was therefore extended until at least 1st July. Since Mr Walsh had submitted his claim on 25th June, it was therefore premature and the Tribunal did not have jurisdiction to hear the claims. They said:

“It is not credible for Mr Walsh to have agreed that the flexible working application appeal could take place on 1st July 2019 without agreeing that the process, of which the hearing was part, could continue until at least that date. It is implicit in positively agreeing a date for a hearing, without raising any concern or objection to the date, that the process of which the hearing is part can continue until at least that date.”

Mr Walsh appealed to the Employment Appeal Tribunal.

What did the EAT decide?

The question that the EAT set itself to answer was whether the original tribunal judgment had been correct in law to conclude that Mr Walsh’s agreement to the appeal taking place on a specific date after the decision period had finished meant that he had agreed to the extension of the decision period.

The EAT said that if an agreement was reached to extend the decision period, it could be either express or implied, but it had to be clear that an agreement existed. They said that an employee’s agreement to attend an appeal hearing was certainly not an explicit agreement to extend the decision period.

Network Rail countered by saying that there would be no point attending an appeal hearing if it has not been agreed that there would be an extension to the decision period and therefore, an agreement to attend an appeal must necessarily involve an agreement to extend the decision period.

However, the EAT again disagreed. They said that there are a “number of reasons why parties might wish to hold an appeal hearing outside the decision period, even if an agreement cannot be reached that the decision period be extended. An appeal might resolve the differences between the parties and so avoid a hearing in the employment tribunal, or reduce the issues in dispute. [It] might deal with substantive issues, such as whether the determination has been made on correct facts, been dealt with reasonably, or whether the refusal was for one of the permitted grounds.”

They continued: “There is nothing implicit in an employee agreeing to attend an appeal hearing that means that the employee must have agreed to an extension of the decision period.”

An agreement to attend an appeal after the expiry of the decision period is just an agreement to attend the appeal. For the decision period to be extended there must be an agreement for an extension.

What should employers bear in mind?

The person who is overseeing the appeal process needs to make sure that they have noted the end date of the decision process and should try to ensure that the process is complete by that point. However, this is not always practical and if it becomes clear that the end date won’t be met, for whatever reason, then the employer needs to get the employee’s agreement - in writing if possible - that the decision period can be extended.

Such a delay is entirely possible since even after an appeal is held, the employer will need time to reach a final decision. Although Network Rail managed to do it the same day, this is not always possible. If plans being considered by the government to reduce the timetable for considering flexible working requests become law, this will be even more important.