The Employment Appeal Tribunal (EAT) has recently considered whether a series of informal discussions about taking unpaid parental leave, without a formal written notice, could amount to an employee having “sought” to take parental leave in line with the Maternity and Parental Leave etc Regulations 1999 (MPL).
Entitlement to take unpaid parental leave is set out in the MPL Regulations. Under these, employers can either devise their own non-statutory scheme for implementing parental leave or use the default scheme set out in the MPL. The default statutory scheme:
- gives employers the opportunity to request evidence of an employee’s entitlement to parental leave and to postpone any requested period of leave; and
- requires employees to give notice specifying the start and end dates of their proposed period of leave to their employer, at least 21 days before the beginning of the leave.
Where an employee is dismissed and the reason, or principal reason, is that they “took or sought to take” parental leave, this will amount to automatic unfair dismissal.
In the recent case of Hilton Foods Solutions Ltd v Wright, the EAT considered whether informal discussions could amount to seeking to take parental leave. The Employment Tribunal (ET) had refused to strike out an employee’s claim for automatic unfair dismissal, finding that they had sought to take parental leave even though they did not comply with the notice requirements in the MPL. Mr Wright had not made any formal written application for parental leave, but had instead had informal discussions on three separate occasions with various individuals including his line manager and HR. Upon being dismissed, he made a claim for unfair dismissal citing protection under the MPL.
Disputing this claim, Hilton Foods Solutions Ltd (Hilton Foods) argued that it was a prerequisite of an automatic unfair dismissal claim on these grounds that the MPL must have been complied with. It argued that, as Mr Wright had not complied with the default statutory scheme in the MPL, he could not as a matter of law have sought to take parental leave. The ET disagreed and found in favour of the Claimant.
Hilton Foods appealed this decision, arguing that the MPL are prescriptive and require a formal written application to be made. Dismissing the appeal, the EAT explained that there is no absolute requirement that an employee must have given formal written notice for that employee to have “sought” to take parental leave. It found that, whether notice was required, would need to be determined by a tribunal on the facts of each case. Further, if Hilton Foods’ argument succeeded, it would give rise to consequences incompatible with the current approach. In particular:
- it would mean that even where an employee had unambiguously informed their employer of a decision to take parental leave and asked to do so, if the employee was dismissed to prevent them taking the leave, the protection in the MPL would not apply; and
- it would not address instances where an employee sought to take parental leave conferred by a non-statutory scheme. “Sought” should not have a different meaning depending on whether the contractual or statutory default provisions apply.
Employers need to be aware of the protection from both detriment and dismissal given to employees who have sought to take parental leave. Employers should be mindful that an employee may be able to rely on this protection, even if they have not given notice of their intention to take parental leave, but have only taken initial steps to indicate they intend to do so.
