Under flexible working law, the employer has a three month ‘decision period’ to deal with the employee’s flexible working request (which runs from the date a formal request is made).
However, what happens if the original request is rejected by the employer and the employee agrees to attend an appeal hearing outside the three-month decision period for resolving flexible working requests – has he also agreed to extend the decision period?
In Walsh v Network Rail Infrastructure Limited, the Employment Appeal Tribunal (“EAT“) has held, no, the period cannot be extended in those circumstances.
In this case, the Claimant’s request for flexible working was rejected. There was then a delay in fixing the appeal hearing, with it being agreed that it would be held outside the three-month decision period for resolving the request.
Before the appeal hearing, the Claimant submitted a claim alleging breaches of the flexible working legislation, including that the process had not been concluded within the decision period. The Employment Tribunal held that his agreement to attend the appeal hearing was, by implication, also an agreement to extend the decision period itself.
However, the EAT concluded the contrary. It stated that, whilst it is possible to extend the decision period beyond 3 months, agreeing to attend an appeal hearing does not necessarily mean that the employee also agrees to extend the decision period.