If an 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?
No, held the EAT in Walsh v Network Rail Infrastructure Limited.
In February 2019, the Claimant submitted a flexible working request, which was rejected. There was a delay in fixing the appeal hearing. Eventually, in late June 2019, the parties agreed to hold the hearing in July. However, this was 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 tribunal held that his agreement to attend the appeal hearing was, by implication, an agreement to extend the decision period itself. The result was that his ET1 was premature and the tribunal did not have jurisdiction to hear the claim.
The EAT overturned the decision, holding that it must be clear that there is an agreement to extend the decision period. Agreeing to attend an appeal hearing does not necessarily mean that the employee also agrees to extend the decision period.
Thanks to Amanda Steadman of BDBF LLP for preparing this case summary.