Cases - Flexible working request timescales

Under the Employment Rights Act 1996 a flexible working request, including any appeal, must be dealt with within a three-month period from its submission. This timescale is referred to as the ‘decision period’. The EAT has issued a reminder of the need to stick to this timescale in the case of Walsh v Network Rail Infrastructure Limited.

The Claimant, Walsh, submitted a flexible working request in February 2019. It was rejected and after a delay, the parties agreed to hold the appeal hearing in July 2019. 

Before the appeal hearing took place, the Claimant submitted an employment tribunal (ET) claim alleging a number of breaches of the flexible working legislation, including that the process had not been concluded within the decision period.

The ET held that there had not been a breach of the law because the Claimant’s agreement to attend the appeal hearing was also, by implication, an agreement to extend the decision period.  Consequently, the ET told the Claimant that they did not have the jurisdiction to hear the claim because it was premature.

The EAT overturned this decision, deciding that it must be clear that there is an agreement to extend the time to make a decision and that agreeing to attend a delayed appeal hearing does not necessarily mean there is agreement to a longer decision period.

The desire to trial a flexible working arrangement is something we often discuss with our clients and our advice has always been to gain express agreement to the extended timescale before the end of the decision period.  Where an employee making a request does not want to agree to the delay then a decision should be made within the three-month timescale without the benefit of the trial period.