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EAT dismisses strike-out application for automatic unfair dismissal claim relating to intention to seek parental leave

on Friday, 22 March 2024.

The Employment Appeal Tribunal (EAT) has confirmed it is not necessary to submit a formal request in order to be protected from automatic unfair dismissal, as a consequence of seeking to take parental leave.

The right to take parental leave

Under the Maternity and Parental Leave etc Regulations 1999 (the Regulations), employees are entitled to take up to 18 weeks' unpaid parental leave per child, to be taken for the purposes of caring for a child at any time before the child's 18th birthday. The Regulations require employees to give at least 21 days' notice of the proposed leave they wish to take. An employee will be automatically unfairly dismissed if their employment is terminated because they took or sought to take parental leave.

What are the facts of the case?

In Hilton Foods Solutions Ltd v Wright the claimant was made redundant after one year's employment. Prior to his redundancy, the claimant had had a number of informal discussions about his wish to take parental leave, including with his line manager and HR. He had been met with resistance and was shortly after made redundant. He believed the real reason for his dismissal was that he had sought to take parental leave, and brought a Tribunal claim for automatic unfair dismissal.

The respondent applied to strike out the claim. It argued that as the claimant did not give formal notice of his intention to take parental leave, he could not have legally 'sought to take' parental leave under the Regulations.

The Tribunal dismissed the strike-out application at a preliminary hearing. It concluded that in making informal enquiries about taking parental leave and stating his intention to make such leave on a number of occasions, it was arguable that the claimant had 'sought to take' parental leave, despite the lack of written application.

The respondent appealed to the EAT.

What did the EAT decide?

The EAT dismissed the appeal. It found that Tribunals must determine whether an employee sought to exercise the right to take parental leave based on the facts of a particular case. There is no absolute requirement for an employee to have given formal notice under the Regulations in order to have 'sought' to take parental leave. Indeed, had Parliament intended to limit the protection against dismissal to employees who have given notice, it could have used wording to that effect in the Regulations.

Learning points

This case acts as a useful reminder that an employee may be protected against both detriment and dismissal if their intention to take parental leave is made clear to their employer. Employers cannot rely on an argument that an employee who has not given formal notice has not 'sought' to take the leave and therefore does not benefit from protection.

For more information or advice, please contact Rory Jutton in our Employment team on 0117 314 5286, or complete the form below.

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