357: Is the decision period for flexible working requests automatically extended by an appeal hearing?

Flexible working requests have strict time limits, and it is dangerous for employers to assume deadlines have been extended.

Under section 80G of the Employment Rights Act 1996, an employee’s request for flexible working must be dealt with in a reasonable manner and within the statutory decision period of three months, or within a longer period if agreed by employer and employee. Failure to comply with this timescale can lead to an award of compensation of up to eight weeks’ pay (capped at the statutory rate, currently £544). In Walsh v Network Rail Infrastructure Ltd, the EAT has ruled that an employee’s agreement to attend an appeal hearing after the expiry of the decision period did not amount to an implicit agreement to extend it.

Mr Walsh’s flexible working request was rejected by Network Rail on 11 February 2019. He was given an opportunity to appeal this decision. Following extensive correspondence, a date for the appeal hearing was fixed for 11 July 2019. Neither Mr Walsh nor Network Rail seemed to have given any thought to the fact that this was outside the 10 May deadline for the statutory decision period.

Mr Walsh brought an Employment Tribunal claim arguing that Network Rail had failed to provide a decision on his flexible working request before expiry of the decision period. The Tribunal dismissed his claim, ruling that his agreement to an appeal hearing after the deadline had passed necessarily also involved an implicit and retrospective agreement to extend the deadline.

On appeal, the EAT held that the Tribunal was wrong to reach this conclusion. The legislation is clear that a specific agreement between employer and employee is required to extend the statutory decision period. An agreement to attend an appeal hearing after the expiration of a decision period is a separate matter from whether there has been an agreement to extend the decision period. Mr Walsh’s case was sent back to the Tribunal to be decided on its merits.

This case highlights the importance of dealing promptly with flexible working requests and factoring in sufficient time to make a decision on a possible appeal hearing within the statutory three-month period. Any extension must be explicitly agreed with the employee and properly documented, including an extension necessary as a result of an appeal.