Despite the rise in the number of requests for flexible working recently, there have been relatively few cases on the subject since the start of the pandemic.
Earlier in the year, we had a decision regarding the turning down of flexible working requests without proper consultation in Hodgson v MDA Ltd. We reported on that here, and the employer’s stance was held to be unlawful and it cost them £60,000. Proper, meaningful consultation had not been carried out.
We had another case, Dobson v North Cumbria Integrated Care NHS Foundation Trust. Here, it was ruled that unfairly applying criteria to flexible working requests that discriminated, in this instance particularly against working mothers, was unlawful. You can read about our thoughts here.
But so far, we have not had anything that has talked about the length of time it takes to make a decision.
This was set a few years ago by the ERA (Employment Rights Act 1996, as amended) at three months. Once a flexible working request is properly submitted by the employee in writing (this includes email), the employer must have come to a decision, including allowing for any appeal, within three months. The only exception to this is where both parties mutually agree to an extension of the time between them.
Way before the pandemic, in early 2019, in Walsh v Network Rail Infrastructure Limited, the Claimant had submitted a proper flexible working request. This had been turned down by the organisation and that decision was appealed.
Unfortunately, and this was not disputed, through no fault of either party, that appeal could not be heard until after the three months was up. The Claimant then submitted an ET1 (an Employment Tribunal claim) that the organisation had not treated his request properly, and that the process had not been completed within the decision period.
The Employment Tribunal rejected the claim, saying they were not able to hear it until the appeal process had been completed. And, as they had both agreed to it taking place after the deadline, they had both implicitly agreed to extend the decision period, something that the law allows them to do by mutual consent.
This decision was overturned by the EAT (Employment Appeal Tribunal), so the Employment Tribunal was told to hear the case. The facts of the case are not particularly relevant, but some of the Judge’s comments are. In particular, it is beholden upon employers to complete these requests within three months, as very often employees are in situations where they need a quick decision.
“Part of the statutory purpose of these provisions is to ensure that decisions are made with reasonable dispatch. That is for obvious reasons. Employees often seek flexible working because of urgent personal circumstances.”
It is simply not good enough to delay, even if the reason for that delay is beyond both parties control. In reality, with hindsight, it is possible that the employer could have acted upon the initial request earlier, and not relied so much upon ACAS, who were the ones who were responsible for the hold-up.
Flexible working requests are becoming more and more frequent, as the pandemic has caused many to re-evaluate their working lives and patterns. We just need to remind employers that these need to be treated properly, with a proper process and a right of appeal, and that everything should be completed within three months.
That is unless both parties agree explicitly to extend the period. Silence or lack of complaint, cannot be held to signify that the employee has actually agreed to delay beyond the three-month timeframe.
The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice.