Flexible working requests – agreeing to extend the decision period

An employee with at least 26 weeks’ continuous service can make a statutory flexible working request to vary their hours, times or place of work. The employer must deal with the request in a reasonable manner. The employer must reach a decision and notify the employee of the outcome within the decision period. The decision period is three months from the date of the flexible working application, which can be extended by agreement.

A request can be refused on a number of permitted grounds. The statutory process does not include a requirement for an appeal. However, where the employer’s procedure provides for an appeal, the appeal decision must also be reached and notified to the employee within the decision period.

An employee can issue a Claim in the Employment Tribunal on a number of grounds. These include that the employer has not dealt with the application in a reasonable manner or within the decision period; or that a decision to reject their request for flexible working has been made on incorrect facts. However, the Claim cannot be issued on those grounds until either the employer has notified the employee of the decision within the decision period; or the decision period has ended without a decision being made.

The Claim

Mr W submitted a flexible working application, which was rejected. He appealed against the decision on 13 March 2019. He applied to ACAS for early conciliation on 4 April 2019 and the early conciliation Certificate was issued that day. There was a delay in fixing a date for the appeal hearing, which was later found not to be the fault of either Mr W or the employer.

The decision period, in the absence of an agreement to extend, was due to end on 10 May 2019. Mr W issued a Claim in the Employment Tribunal (ET) on 25 June 2019. He argued 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 end of the decision period. The employer and Mr W agreed that he would attend an appeal hearing in respect of his flexible working request on 1 July 2019, after his ET Claim was issued.

Was there an agreement to extend the decision period?

The ET found that Mr W and the employer agreed that the appeal hearing regarding the flexible working request would take place on 1 July 2019. It found that the agreement to hold the appeal hearing on that date necessarily involved an agreement to extend the decision period. The consequence of that was that Mr W’s Claim in the ET had been issued before the expiry of the decision period; and that the ET had no jurisdiction to hear the Claim.

The Employment Appeal Tribunal (EAT) disagreed. It noted that there is no provision in statute about whether any agreement to extend the decision period should be in writing, or whether it should be express rather than implied. However, the provisions are clear that there must be an agreement. The EAT found that an agreement to attend an appeal hearing after the end of the decision period is a separate matter from whether there has been an agreement to extend the decision period. It noted “there is nothing implicit in an employee agreeing to attend an appeal hearing that means the employee must have agreed to an extension of the decision period”. For the decision period to be extended, there must be an agreement for an extension. In this case, since there was no agreement to extend the decision period, Mr W was able to issue a Claim when he did. The EAT therefore sent the matter back to the ET to decide whether the employer’s decision to refuse the application for flexible working, and to refuse the appeal, was not dealt with in a reasonable manner and was based on incorrect facts.

Comment

It is clear from this judgment that any extension to the decision period needs to be addressed directly and agreed by the employer and the employee. It must be clear that the agreement is to extend the decision period.

ACAS has issued a Code of Practice, which employers should consider when putting in place a flexible working policy and when considering flexible working requests. When considering Claims, Employment Tribunals must take the Code into account when it appears relevant.

Although the statutory procedure does not expressly require the employer to allow an appeal against a rejection of an application for flexible working, the ACAS Code suggests that employees should be allowed to do so. A right of appeal may be seen as an important part of dealing with the request in a reasonable manner. It may also give an opportunity to resolve or reduce any issues in dispute, so reducing the risk of a Tribunal Claim.

In the event of a successful Claim, the ET can make an order for reconsideration of the flexible working request. It can also make an award of compensation. The amount of compensation shall be such amount as the ET considers just and equitable in all the circumstances but may not exceed 8 weeks’ pay (subject to a statutory cap on a week’s pay).

Although not relevant in this case, there are also other Claims that can arise, depending on the circumstances. For example, it is automatically unfair to dismiss an employee if the reason, or principal reason for dismissal is that the employee made a flexible working request. In some circumstances, allegations of discrimination or constructive dismissal can also arise. It is therefore important that employers give serious and careful consideration to requests for flexible working.

The Government has published a consultation document proposing various reforms to the right for employees to request flexible working. Further details of the proposals are set out in our separate post here.

Walsh v Network Rail Infrastructure Ltd

22 December 2021

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