Delays to flexible working requests must be agreed

The government is still to confirm the outcome of its public consultation into making flexible working the default position for all employees from day-one of employment. However, in the meantime, the employment tribunal system has confirmed the responsibilities on employers to provide an outcome to all flexible working requests within three months from the date the request was made.

Under section 80F of the Employment Rights Act (1996), employers have the right to apply for a change to their terms and conditions of employment, typically relating to factors such as their hours, place and time of work, if they have worked continuously with the same employer for at least 26 weeks. The Act further goes on to state employers are required to deal with any requests in a reasonable manner, and that where there is an appeal, the appeal decision must also be notified within the decision period. The decision period in this situation is specified 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.”

In the case of Walsh V Network Rail Infrastructure Ltd, the employee made a flexible working request on 11 February 2019, which the respondent rejected on 6 March 2019. An appeal was then submitted on 13 March 2019, however, a date could not be arranged by both parties to hear the appeal. The delay to the process led the employee to apply for an obtain an early conciliation certificate on 4 April 2019.

Extensive correspondence between both the employee and employer continued but by 10 May 2019 (the 3-month decision period deadline), the meeting had still not been arranged. Eventually, it was agreed to be held on 1 July 2019, but the claimant submitted a tribunal claim on 25 June 2019, on the grounds that the flexible working request 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 finally held on 1 July 2019, with the decision to not uphold it given on the same day.

The Employment Tribunal determined that, since the employee agreed to attend the appeal on 1 July 2019, there was an implied agreement to extend the decision period. This led the ET to conclude that there was no jurisdiction to hear the claim.

However, the claimant appealed to the Employment Appeals Tribunal (EAT) who confirmed the ET had erred in deciding that the employee agreed to the extension of the decision period, on the basis that they are attending the delayed appeal meeting. The EAT concluded that the purpose of the regulations was to ensure decisions are made within a reasonable time. They found the fact the employee attended the appeal hearing to be another matter altogether and was likely an action to try to resolve the substantive issues at hand.

Therefore, businesses must ensure they follow the procedures laid out in the regulations and ensure agreement is sought if there is a need to extend the decision period. For the avoidance of doubt, it is beneficial to confirm agreement in writing, with all parties signing and dating the document. This may become particularly prudent should the government confirm changes to the flexible working process, including reducing the timeframe for response.

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