Agreement to attend at an appeal did not amount to an extension of the decision period, EAT holds

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The EAT held that agreeing to attend an appeal after a flexible working request decision period had passed, did not amount to an agreement to extend the decision period in Walsh v Network Rail Infrastructure Ltd.

Mr Walsh works for Network Rail Infrastructure Limited as an Ops Technician. In February 2019, he submitted a flexible working request, which was rejected in March 2019. Mr Walsh appealed against the decision to reject his request on 13 March 2019.

Following extensive correspondence between Mr Walsh and his employer, it was agreed that an appeal hearing would take place on 1 July 2019. This agreement was confirmed in a letter from Network Rail to Mr Walsh on 24 June 2019.

On 25 June 2019, Mr Walsh submitted an Employment Tribunal claim against his employer, alleging that his “application for flexible working had not been dealt with reasonably, had been determined on incorrect facts, and that the process had not concluded before the decision period had expired”. Under the statutory scheme, an employer must inform an employee of its decision (including on any appeal) within three months of the date of the employee’s request, or a longer period agreed between the parties.

The Employment Tribunal held that it could not hear the claim because “the agreement that the appeal be held on 1 July 2019 necessarily involved an agreement to extend the decision period”. Therefore, “the claim had been submitted before the expiry of the decision period and so the employment tribunal had no jurisdiction to hear the claim”.

Mr Walsh appealed and the case reached the Employment Appeal Tribunal (“EAT”). The EAT held that “an agreement to attend an appeal after the expiration of a decision period is a separate matter from whether there has been an agreement to extend the decision period”. “For the decision period to be extended there must be an agreement for an extension” and this “requires that the period of the extension be agreed”. Mr Walsh’s appeal succeeded. Since there had been no agreement to extend the decision period, his claim was allowed to proceed.

This case demonstrates that a clear, explicit agreement must be reached to extend the decision period for an employee’s flexible working request. An implied agreement should not be assumed.