Scrase Law Employment Solicitors

Dismissal for ‘seeking’ to take parental leave?

It is automatically unfair to dismiss an employee if the reason or principal reason for the dismissal is that they took or sought to take statutory parental leave.  An employee does not need two years’ service to issue a claim in the Employment Tribunal for automatic unfair dismissal in these circumstances. So, what does an employee have to show to argue successfully that they ‘sought’ to take parental leave?

The Maternity and Parental Leave etc Regulations 1999 (MPL Regulations) set out the entitlement to parental leave and provisions relating to the exercise of that right.  This includes that an employee must give their employer notice of the leave they propose to take.  The notice must specify the dates on which the leave is intended to begin and end; and be given to the employer at least 21 days in advance of the intended start date.  An employee cannot exercise their right to statutory parental leave unless they have given the notice provided for in the MPL Regulations.

Background

Mr W has two children.  He had informal discussions with his line manager and with HR regarding taking unpaid parental leave.  The employer emailed him stating that if he wished to apply for parental leave, he would need to send a request in writing to his manager, stating the date that he would like the leave to start.  It reminded him that he needed to allow 21 days’ notice before the start day of his leave.  Mr W said that there were further conversations about parental leave.  Mr W did not make a formal written application for parental leave.  Mr W was dismissed, and the employer stated that the reason for dismissal was redundancy.

The claim

Mr W issued a claim for automatically unfair dismissal in the Employment Tribunal.  He argued that the real reason for his dismissal was that he had sought to take parental leave.  The employer applied for the claim to be struck out, on the basis that it had no reasonable prospects of success. It argued that Mr W had not complied with the MPL Regulations and that he had therefore not ‘sought’ to take parental leave.

The Tribunal did not strike out the claim.  It found that Mr W had made informal enquiries about taking parental leave and made it clear that this was his intention.  He therefore ‘sought’ to take parental leave despite not making a formal written application with notice.

The appeal – what is ‘seeking’ to take parental leave?

The employer appealed to the Employment Appeal Tribunal (EAT).  It argued that the MPL Regulations require an employee to make a formal written application as a requirement to take parental leave; and that an informal discussion about the possibility of taking leave does not amount to ‘seeking to take’ parental leave.

The EAT disagreed, and upheld the Tribunal’s decision.  It concluded that there is no absolute requirement that an employee must have given notice to take parental leave under the MPL Regulations in order to have ‘sought’ to take parental leave.  Giving notice under the MPL Regulations will demonstrate that the employee has sought to take parental leave, but it is not the only way that this can be demonstrated.  It noted that “the Employment Tribunal is best placed to interpret on a proper consideration of all of the relevant facts to determine whether a stage has been reached at which it can be said the employee has sought to take parental leave”.

Comment

The EAT agreed with the Tribunal’s decision not to strike out Mr W’s claim.  However, to succeed in his claim, Mr W would still need to be able to show that the reason, or principal reason, for his dismissal was that he sought to take the leave.  As the Tribunal noted, “It is for tribunals to determine as matter of fact whether there is a connection between the taking of leave and the dismissal and that must be determined by the Tribunal in the light of all the evidence at a final hearing.”

Employers should be aware of the protection that employees have from detriment or dismissal for taking or seeking to take parental leave.  Although each case will depend on its facts, this protection can arise from an informal request.

Hilton Foods Solutions Ltd v Wright 

22 March 2024

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