Employers handling a statutory flexible work request should ensure that any extension to the three month period for deciding the request (including any appeal) is specifically agreed, preferably in writing. They cannot rely on the fact that the employee has agreed to attend an appeal after the expiry of the period as implicitly extending the period.
The statutory right to request flexible working provides that an employer has a period of three months from the date of the request, or such longer period as is agreed between the parties, to notify the employee of its final decision. This includes the decision on any appeal by the employee, if an appeal has been allowed – an appeal is not an express requirement of the statutory procedure, but is best practice and may be impliedly required as part of the duty to deal with a request "in a reasonable manner". An agreement to extend the period can be reached before the original decision period ends or retrospectively within three months after the original decision period.
An employee can bring a claim that the employer has failed to notify them of its decision within the time period and could be awarded just and equitable compensation up to a maximum of eight weeks' pay (subject to the statutory cap, currently £544 per week).
The EAT in Walsh v Network Rail Infrastructure Limited has ruled that the employee's agreement to attend an appeal on a specific date after the initial three month decision period (where the delay was due to difficulty finding a suitable date, and neither party's fault) did not amount to an implied agreement to extend the decision period, not least as it would be unclear whether the extension was only to the appeal date or to some date thereafter to allow time for the appeal to be determined.
Flexible work policies should make clear that, where an appeal cannot be scheduled within the initial three month period, employees wishing to appeal will need to expressly consent to an extension of that period to allow the appeal to be heard and determined. This should also be set out in the letter confirming the initial refusal of the request and the option to appeal. If an extension is required, the employee should be asked to countersign a letter expressly confirming their agreement to extend to a specified date, so that there is clear evidence. Managers running the process should ensure they diarise the end of the three month period and do not delay appeal hearings beyond this without addressing this issue.
Originally published 14 December 2021
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
