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Automatic unfair dismissal – employees protected once they have “sought to take” parental leave

An Employment Appeal Tribunal has considered whether an employee must give notice to take leave to their employer before they will benefit from protection against dismissal

Employees may take up to 18 weeks’ unpaid parental leave, per child, in order to care for that child. An employee is automatically unfairly dismissed, regardless of length of service, if the reason or principal reason for their dismissal is that they “took or sought to take” parental leave.

The facts of Hilton Food Solutions Limited v Wright are as follows. Mr Wright was employed by Hilton Food Solutions Limited (“HFS”) from March 2019 as a Logistics/Supply Chain Manager. In late 2019 and early 2020, Mr Wright had informal discussions with HR, the managing director and his line manager about taking parental leave to look after his autistic son. As part of these discussions, an HR representative explained the application process to Mr Wright in an email. This would involve him making a written request to his manager at least 21 days in advance. Mr Wright’s intention to take parental leave was poorly received by the company’s managing director. On 13 March 2020, Mr Wright was dismissed, purportedly by reason of redundancy. Mr Wright brought an automatic unfair dismissal claim against HFS, arguing that the real reason for his dismissal was that he had “sought to take” parental leave.

HFS applied to strike out Mr Wright’s claim on the basis it had no reasonable prospect of success. It argued that Mr Wright had not formally “sought to take” parental leave as he had not complied with the applicable notice requirements under the Maternity and Parental Leave Regulations (“the Regulations”), and as a result he “may not exercise any entitlement to parental leave”. At a preliminary hearing, the judge decided that the informal discussions on various occasions could amount to seeking to take parental leave and dismissed the strike-out application. HFS appealed to the EAT.

The EAT dismissed the appeal. It held that an employee was not required to have given notice to their employer in accordance with the Regulations in order to establish they had “sought to take” parental leave. While giving such notice would usually demonstrate an employee had “sought to take” leave, that was not the only way an employee could establish they had “sought to take leave”, and it is important to give the legislation a wide, purposive interpretation.

The EAT explained that if HFS’ argument was correct, an employee’s failure to provide notice would negate automatic unfair dismissal protection even where the employee had unambiguously informed their employer of a decision to take parental leave. This could not be correct. In addition, HFS’ analysis did not account for the fact that an employee could comply with the statutory notice provisions but lose their entitlement to parental leave for some other reason, such as a failure to provide supporting evidence if requested by their employer.

The decision in this case clarifies that employees who have informal discussions with their employer about their intention to take parental leave, before making a formal application to do so, may have “sought to take” parental leave under the Regulations. Accordingly, employers should be aware that dismissing an employee in the wake of parental leave discussions could lead to a claim for automatic unfair dismissal.

If you would like advice on bringing or defending an unfair dismissal claim, or your rights or legal obligations in relation to any kind of family leave, or you would like our assistance with drafting or reviewing any family leave policies, please get in touch at [email protected].