The Claimant submitted a flexible working application. The application was refused and he appealed. His appeal was heard on 1 July 2019 and it was dismissed. Before the appeal was heard, which was after the date on which decision should have been made, the Claimant brought a claim to the ET. He asserted that his application for flexible working had not been dealt with reasonably, had been determined on incorrect facts, and that the process had not concluded before the decision period had expired. The ET 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 claim had been submitted before the expiry of the decision period and so the ET had no jurisdiction to hear the claim. The Claimant appealed.

The EAT allowed the appeal. The ET was wrong as a matter of law to conclude that a decision to agree to attend and participate in an appeal on a specific date, necessarily involved there being an agreement to extend the decision period, there is only one possible conclusion that could have been reached on the evidence before the ET, that there was no agreement to extend the decision period and accordingly the claim to the ET was not precluded by operation of section 80H(3B) ERA.