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Agreement to attend a late appeal does not mean an agreement to extend a decision period

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of Walsh v Network Rail Infrastructure Ltd the UK EAT found that an employee had not agreed to an extension to the normal three month time frame for deciding flexible working requests when he agreed to attend an appeal outside that three month period. The employment tribunal should have considered the merits of the claim.

If an employer receives a flexible working request, it must consider it reasonably and complete the flexible working process, including any appeal, within a “decision period” of three months beginning with the date of the request. The employer and employee can however agree to extend the decision period. An employee can only bring a claim in the employment tribunal about a breach of the flexible working requirements after the relevant decision period has expired.

The issue for the EAT in Walsh v Network Rail Infrastructure Ltd was whether an employee had impliedly agreed to an extension of the decision period when he agreed to attend an appeal hearing that was scheduled to take place more than three months after he made his initial flexible working request. If he had, by lodging his tribunal claim before the appeal had taken place he had acted too

soon and the tribunal would not have jurisdiction to hear the complaint. The delay in fixing the appeal was neither party’s fault.

The EAT overturned the employment tribunal’s finding that the employee had implicitly agreed to extend the decision period when he agreed to attend the appeal outside the normal three-month period. It did not follow that, by agreeing to attend the appeal, he had also agreed to an extension of the decision period. For a valid extension to the decision period, the employee would have to agree both to this and to the duration of any extension. As the employee brought his claim more than three months after his initial flexible working request, and no extension had been agreed, the tribunal should have considered the clam on its merits.

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