Flexible working applications

Flexible working applications – how quickly do you need to deal with them?

Dec 15th, 2021

Marie Horner, Partner

A recent decision of the employment appeal tribunal (EAT) has sharply brought in to focus the timeframe within which businesses must consider and decide upon requests to work flexibly, and the need to ensure that express agreement is reached with the employee to extend that period where desirable to consider the request fully. 

Claims to the tribunals for failure to adhere to the 3-month time limit for flexible working requests are relatively uncommon, most likely because the value of such claims are quite low and employees are reluctant to bring complaints against their current employer.  However, the recent case of Walsh v Network Rail Infrastructure Ltd reached the EAT on this very point and acts as a clear reminder that neither the timeframe, nor the need for express agreement to extend it, are optional, and that any appeal on the original decision is also to be considered within those 3 months.

What happened in this case

Mr Walsh lodged a tribunal complaint against Network Rail after the 3-month period had expired, notwithstanding that an appeal hearing had been arranged for a date shortly after that. 

The tribunal originally found that Mr Walsh had impliedly agreed to extend the 3-month period by virtue of his agreement to attend the appeal hearing outside of the initial time limit.

However, the EAT disagreed.  Mr Walsh had in fact never expressly agreed with Network Rail to extend the decision period and this should not have been implied into his agreement to attend the appeal meeting.

The EAT said that Mr Walsh must have expressly agreed to both the extension and the length of that extension for an express agreement to be present.

If you are dealing with a flexible working request

In summary, when dealing with a flexible working request, ensure that you note the 3-month time limit at the outset, and allow for a possible appeal hearing and final decision-making period to come within that timeframe.

Review the progress of the process periodically and, if it looks like further time might be needed, obtain agreement in writing from the employee to an extension of time.

As the government has, in its recent consultation paper, proposed to reduce the timeframe for considering flexible working requests, it would be prudent to get a clear process in place now and ensure managers who deal with requests fully understand the timelines.

For assistance with flexible working requests or any other employment law and HR issues, give the Langleys employment law team a call on 0330094777, or contact us.

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Marie Horner

Partner

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