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Chambers & Partners
07/12/2021

Rachel Owusu-Agyei succeeds in EAT case clarifying employers’ obligations to provide decisions on flexible working applications within the decision period

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Rachel Owusu-Agyei succeeds in the EAT in Walsh v Network Rail Infrastructure Limited UKEAT/0007/21 as the court clarifies what constitutes an agreement to extend the decision period within which a decision on a flexible working application can be given.

Under s.80G Employment Rights Act 1996 (“ERA”), employers must provide a decision on a flexible working application within a “decision period” (s.80G(1)(aa)). The decision period is either 3 months from the date the application is made, or such longer period as may be agreed by the employer and the employee (s.80G(1B)). An employee can only bring a complaint to the employment tribunal regarding a failure to provide a decision on a flexible working application within the decision period if the decision period has expired (s.80H(3)(b)).

Mr Walsh made a flexible working application to his employer. The application was rejected, but Mr Walsh internally appealed against that decision. There was correspondence regarding the date of the appeal hearing. Meanwhile, the decision period expired. Eventually, the Claimant was invited to an appeal hearing that took place after the 3-month decision period had expired.

At first instance, the employment tribunal decided that an agreement that an appeal hearing take place on a date after the expiration of the decision period necessarily involves an agreement that retrospectively, the decision period should be extended.

On appeal, the EAT rejected this finding. The tribunal erred in law in finding that an agreement to have an appeal hearing on a certain date necessarily involves an agreement to extend the decision period within the terms of s.80G(1B)(b). The EAT recognised that there are a number of reasons why parties might wish to hold an appeal hearing outside the decision period, even if there is no agreement to extend the decision period. For instance, the appeal hearing might resolve the differences between the parties, or it could deal with substantive issues about whether the application had been dealt with reasonably. There was nothing implicit in an employee agreeing to attend an appeal hearing that necessarily meant they were agreeing to the decision period being extended.

The case was remitted back to the tribunal to decide the substantive challenges raised by the Claimant on the rejection of his flexible working application and remedy.

This judgment is the first appellate authority on the interpretation of s.80G(1B)(b) ERA 1996 and provides helpful guidance to tribunals considering jurisdictional challenges to flexible working claims brought under s.80H ERA 1996.

Rachel, instructed by Keith Brand of Thompsons Solicitors, acted for the successful Claimant.

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Rachel Owusu-Agyei

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