Flexible working: how to get it right

In Walsh -v- Network Rail Infrastructure Limited, the EAT held that the fact that the employee had agreed for an appeal hearing to be held outside of the decision period did not amount to an agreement to extend the three-month period in which the decision should be concluded.

In February 2019, Mr Walsh submitted a flexible working request through the formal process, which was rejected. Due to various reasons, there was a delay in fixing the appeal hearing, which eventually took place in July 2019, with Mr Walsh’s agreement. This was clearly outside the three-month ‘decision period’ for resolving the request.

Prior to attending the appeal hearing, Mr Walsh submitted an employment tribunal claim alleging breaches of the flexible working regime, including that the process had not been concluded within the three-month decision period. The tribunal held that Mr Walsh’s agreement to attend the appeal hearing outside of the stipulated time frame was, by implication, an agreement to extend the decision period and as in the tribunal’s view he had submitted his ET1 prematurely, they did not have jurisdiction to hear the claim.

The EAT overturned the tribunal’s decision, holding that it was not reasonable to imply this and it must be clear that there is an agreement to extend the decision period. The fact that Mr Walsh had taken steps to assert his rights by commencing early conciliation and issuing proceedings was a clear demonstration that he did not agree to an extension of the decision period. The EAT stated unambiguously that agreeing to attend an appeal hearing does not necessarily mean that the employee also agrees to extend the decision period.

How to get flexible working right

Employers have seen a marked increase in flexible working requests following the various hybrid working models that have been implemented as a result of the pandemic. Below is some guidance for employers to ensure that they deal with flexible working applications in line with the statutory process.

Flexible working eligibility

Employees must have worked continuously for the same employer for 26 weeks to have the legal right to request flexible working. This is currently under consultation, with the Government taking views on whether to make the right to request flexible working a ‘day-one right’ for all employees.

Employees must make the request for flexible working in writing and must not have made any other formal flexible working request in the preceding 12 months.

Responding to a flexible working request

An employer is legally obliged to deal with requests in a ‘reasonable manner’ within three months, however as we have seen above, this can be extended provided that the employee explicitly agrees to this. In considering an application, an employer should weigh up the advantages and disadvantages of the request, hold a meeting with the employee to discuss the request and, if the request is unsuccessful, offer the right to appeal.

It is important to note that there are a limited number of valid business reasons that can be relied upon to reject a flexible working request which are:

• The burden of additional costs;
• Detrimental effect on ability to meet customer demand;
• Inability to re-organise work among existing staff;
• Inability to recruit additional staff;
• Detrimental impact on quality;
• Detrimental impact on performance;
• Insufficiency of work during the periods the employee proposes to work;
• Planned structural changes; and
• Such other grounds as the Secretary of State may specify by regulations.

One of the most used reasons for rejecting an application is that flexible working will ‘detrimentally affect quality or performance of work’. This may well be less easy to rely upon in the current climate, particularly for employees that have demonstrated that they have been able to work from home successfully during any period of enforced homeworking due to the pandemic. In these circumstances, it is likely to be more difficult for an employer to argue that there will be a negative impact on quality or performance of work in the future if this has been proven not to be the case.

Employers must consider requests for flexible working fairly and should always ensure that the relevant procedure is followed, whether this is an internal flexible working policy or procedure, or the statutory guidance.

If employees feel that their request has not been handled fairly, then they could appeal against the decision or, if they are feeling particularly aggrieved, they may look to make a claim to an employment tribunal.

It is also important to bear in mind that it is unlawful for an employer to subject an employee to detriment or dismiss them for making a flexible working request. It is also vital for employers to be mindful of any protected characteristics that the individual making the request may have, in order to avoid claims of discrimination.