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What does it take to ‘seek’ parental leave?

As it turns out, not as much as one employer thought!

There are specific regulations covering the rules around taking statutory parental leave, and there is also a separate statutory right to claim automatic unfair dismissal if someone is dismissed because they took (or sought to take) statutory parental leave. In the recent case of Hilton Foods Solutions Ltd v Wright, the employee, the father of an autistic son, was dismissed for reasons which he claimed were connected to him seeking to take unpaid parental leave and were therefore automatically unfair. The employer tried to strike out the automatic unfair dismissal claim on the basis that Mr Wright had not started any stipulated formal process to apply for leave, therefore, in the employer’s view, he had not sought to take it.

An HR representative at the company had informed Mr Wright of the process for applying to take unpaid parental leave, and Mr Wright had subsequently indicated his intention to take it and had a meeting about it. However, before any formal application was the submitted, Mr Wright was dismissed by reason of redundancy. Mr Wright felt the real reason for his dismissal was the fact that he had told his employer about his plan to take parental leave.

The employer had received no formal application for parental leave from Mr Wright, so they argued that it could not be the case that he had been dismissed for seeking such leave. They applied, on a preliminary point, to have the case struck out on the basis that it had no reasonable prospect of success.

At the first stage of the case the Employment Tribunal found in favour of Mr Wright. The Employment Judge found that making informal enquiries, along with a stated intention to take leave, was sufficient to pass the threshold of seeking to take unpaid parental leave.

The employer still felt that a formal application was required, and therefore submitted an appeal to the Employment Appeal Tribunal (EAT). However, the EAT agreed with the Employment Judge who had heard the case in the Employment Tribunal and therefore dismissed the appeal.

The EAT stated that if Parliament had intended to limit the protection against dismissal given by the legislation to those who had given formal notice of wanting to take the leave, it would have been worded differently. As it was, the EAT confirmed that the legislation covered two separate situations. The first was the one relevant to this case, where someone sought to take leave, and the second, where the employee was able to exercise a right to leave because the appropriate notice had been given.

The EAT felt that the employer was attempting to argue that there could be no protection just because no formal application had been submitted, even if there had been an unambiguous statement by the employee of their intention to take parental leave. However, there was nothing in the legislation to specify that a formal application had to have been made in order for someone to be regarded as having the protection. A formal application would leave no doubt about the intention to seek to take leave, but it was not a statutory requirement.

So what does this mean for employers? This case shows us that employers need to be wary of situations like this where people can gain statutory protection in ways that they might not have expected. Although this case was about statutory parental leave, the same principles would apply to other statutory types of leave, and claims for automatically unfair dismissal can be brought with no minimum period of qualifying service.

If you would like assistance with an employment issue, please contact any member of our Employment Team

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.