Appeal hearing for flexible working that fell outside decision period did not extend that period (EA-2020-000724-RN)
In the case of Mr J Walsh (Appellant) v Network Rail Infrastructure Limited (EA-2020-000724-RN), an agreement, made after the expiration of the decision period, to participate in an appeal hearing against a decision to refuse an application for flexible working, did not result in an implied agreement to extend the decision period for the purposes of section 80G(1B)(b) Employment Rights Act 1996 (ERA 1996).
The facts in the case of Mr J Walsh v Network Rail Infrastructure Limited
This was an appeal against the Employment Tribunal decision that the Appellant (as a claimant) had presented a complaint in respect of a request for flexible working that fell outside the jurisdiction of the ET because it had been made during the decision period and therefore was premature.
The Appellant had submitted a flexible working application on 11 February 2019. The application was rejected on 6 March 2019, confirmed the next day. The Appellant appealed against this on 13 March 2019. The Appellant applied to ACAS on 4 April 2019. An early conciliation certificate was issued that day. There was extensive correspondence between the parties seeking to fix a date for an appeal hearing.
The decision period in which a determination was to be made in respect of both the original application for flexible working and the appeal was due to elapse on 10 May 2019. After that date correspondence continued between the parties. Neither party appeared to give any thought to the decision period. An appeal date was eventually agreed and a hearing held on 1 July 2019 where the Appellant’s appeal was dismissed. The Appellant brought his claim to the Employment Tribunal.
The decision of the Employment Tribunal
The Employment Tribunal concluded that the agreement that the appeal be held on 1 July 2019 necessarily involved an agreement to extend the decision period. That had the consequence that the Employment Tribunal claim had been submitted before the expiry of the decision period and so the Employment Tribunal had no jurisdiction to hear the claim.
The employer has a number of duties in relation to an application for flexible working. These are set out in section 80G and section 80H ERA 1996. Section 80G(1C) ERA 1996 provides that an agreement to extend the decision period may be made before it ends, or with retrospective effect, before the end of a period of three months beginning with the day after that on which the decision period came to an end. Section 80H(3) ERA precludes a complaint being made to the Employment Tribunal before the decision period has ended.
The Employment Tribunal concluded that because an agreement had been reached that the appeal should go ahead on a specific date, 1 July 2019, that necessarily involved an agreement between the parties that there be an extension of the decision period.
The decision of the Employment Appeal Tribunal
Judge James Tayler considered that the key issue in this appeal was straightforward: was the Employment Tribunal correct in law to conclude that an agreement that an appeal take place on a specific date after the expiration of the decision period necessarily involved a retrospective agreement that the decision period also be extended?
Judge Tayler stated that the ERA 1996 is silent as to the nature of an agreement to extend the decision period. There is no requirement that it be in writing, or that it be express rather than implied. However, the statute is clear that there must be an agreement that the decision period be extended. He considered 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. This is because there are a number of other reasons why parties might wish to hold an appeal hearing outside the decision period, even if an agreement cannot be reached that the decision period be extended. For example, an appeal might resolve differences between the parties so as to avoid a hearing in the Employment Tribunal, or reduce the issues in dispute. An appeal might deal with substantive issues, such as whether the determination has been made on correct facts.
There is therefore nothing implicit in an employee agreeing to attend an appeal hearing that means that the employee has also, at the same time, agreed to an extension of the decision period. For the decision period to be extended there must be an agreement for an extension separate from the decision to attend an appeal hearing. The case was resubmitted to the Employment Tribunal.
Our solicitors’ comments on the case of Mr J Walsh v Network Rail Infrastructure Limited
Caroline Lewis, a Senior Associate in the employment department at Redmans, made the following comments on the case: “In relation to requests for flexible working, after this case, it seems clear that a decision to extend the decision period needs to be a clear and separate decision taken between the two parties and not implied as a result of or based on the date that a hearing or appeal hearing of an employee’s request for flexible working is held. This then allows for section 80H(3) ERA to be properly applied”.
The decision of the Employment Appeal Tribunal in Mr J Walsh v Network Rail Infrastructure Limited can be found here.