Walsh v Network Rail Infrastructure Ltd: flexible working decision periods

In this decision on flexible working decision periods, the Employment Appeals Tribunal (EAT) had to decide if the Tribunal was correct in deciding that the three-month decision-making period under the flexible working rules had been extended by retrospective agreement, and therefore the claim before the Employment Tribunal (ET) was premature and as such outside of its jurisdiction to hear.  


The claimant submitted a flexible working request on 11 February 2019, which was rejected on 6 March 2019. This was appealed on 13 March 2019, and on 4 April 2019 the claimant applied for, and obtained, an early conciliation certificate. Extensive correspondence took place between the parties in an attempt to arrange the appeal hearing, leading to a delay in holding it. 

The three-month decision period was due to end on 10 May 2019, but at that point no appeal hearing had been held and correspondence continued between the parties as to when they would be able to meet. Eventually, it was arranged for 1 July 2019, but the claimant submitted an ET claim on 25 June 2019, on the grounds that the flexible working application had not been dealt with reasonably, was determined on incorrect facts and that the process was not concluded before the end of the decision period. 

The appeal was held on 1 July 2019, and the decision not to uphold it was given on the same day. 


It was concluded by the ET that by agreeing to hold the appeal on 1 July 2019, there was implied agreement to extend the decision period, and as such they did not have jurisdiction to hear the claim. 


The EAT found that the ET had erred in law in deciding that on the basis the claimant had attended the appeal hearing on 1 July 2019, they must have agreed to the extension of the decision period. 

It was held that the purpose of the regulations was to ensure that decisions were made within a reasonable time. That the claimant attended the appeal hearing was another matter altogether and was likely in an attempt to resolve the substantive issues at hand. 

The matter was returned to the ET to decide on the substantive details of the case. 

Note for employers 

This case is a reminder of the need to follow the procedural requirements laid out in the relevant legislation. Significant changes to the flexible working process in the past has removed many of the strict time limits that were previously in place, but employers should still be careful to adhere to what the statute sets out. 

If there is a possibility that a final decision will not be made within the three-month decision period, in light of this case employers will put themselves in a better position if they seek agreement to extend the decision period. Not only will this reduce the risk of confusion, it will also avoid claims of this nature.

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