Case Background
In Hilton Foods Solutions v Wright [2024] EAT 28 the Employment Appeal Tribunal considered the meaning of “sought to take” parental leave under the Maternity and Paternity Leave etc. Regulations 1999 (the “Regulations”). Under the Regulations, an employee is to be regarded as unfairly dismissed if the reason, or principal reason, is connected with the fact that he or she ‘took or sought to take’ parental leave.
On a straightforward reading of the Regulations, there is no absolute requirement that an employee must have given notice to take parental leave for them to have ‘sought’ to take parental leave.
Facts of the Case
In Hilton Foods Solutions v Wright [2024] EAT 28 Mr Wright claimed he was unfairly dismissed because he had “sought to take” parental leave. Although he did not submit a formal written request for leave, he argued that he had engaged in several informal conversations about his intention to take parental leave with the company’s HR representative.
Additionally, Mr. Wright had asked for the parental leave policy and discussed his plans with the managing director, who informed him that he could not take the leave. Shortly after a meeting with HR to discuss his parental leave further, he was dismissed due to redundancy.
Mr Wright lodged a tribunal claim for unfair dismissal, as he considered that the real reason for his dismissal was his attempt to take parental leave.
Tribunal Proceedings
It was accepted that Mr Wright had not given formal notice under Schedule 2 of the Regulations.
The Respondent unsuccessfully applied to strike out Mr Wright’s claim for automatic unfair dismissal on the basis that Mr Wright could not have “sought to take” parental leave because he had not complied with Schedule 2 of the Regulations. The Respondent then appealed to the EAT.
EAT Decision
The Respondent’s appeal was dismissed.
The EAT stated that the Regulations should be interpreted broadly and with an understanding of their intended purpose. If the employer’s argument were to succeed, various consequences would ensue, contradicting this broader interpretation. For example, even if an employee had unambiguously informed his or her employer of a decision to take parental leave but was then dismissed to prevent his or her exercise of that right, the protection would not apply because the employee would not have made the formal application. The EAT failed to see how an employee in such circumstances had not ‘sought’ to take parental leave.
The EAT concluded that “there is not an absolute requirement that an employee must have given notice to take parental leave under the terms of paragraphs 1(b) and 3 of Schedule 2 MPLR in order for the employee to have “sought” to take parental leave”. The Employment Tribunal is best placed to decide “on a proper consideration of all of the relevant facts […] whether a stage has been reached at which it can be said the employee has sought to take parental leave, applying a purposive approach to interpretation of the regulations”.
Conclusion
First, employers are not able to rely definitively on the absence of formal notice of parental leave. It is a question of fact whether a “stage has been reached” where an employee has sought to take parental leave. The presence or absence of formal notice is evidence in that assessment.
Second, the “sought to take” wording is also present in protections from unfair dismissal connected with maternity leave and time off for dependents, as well as other forms of leave including paternity leave (Regulation 29(3)(za) Paternity and Adoption Leave Regulations 2002); parental bereavement leave (Regulation 13(3)(a) Parental Bereavement Leave Regulations 2020); and carer’s leave (Regulation 12(3)(a) Carer’s Leave Regulations 2024, in force from 6 April 2024).
Therefore it may be, that this finding applies to other forms of leave with protection for those who “sought to take” it, including the new entitlement to carer’s leave.
Charlotte Grew is a senior employment law solicitor at DPH Legal. Charlotte advises employers and employees on a wide range of employment issues, including unfair and wrongful dismissal, redundancy, work-related stress, bullying and harassment, discrimination, disciplinary and grievance issues, and claims at the Employment Tribunal. She also has extensive experience in preparing and advising on settlement agreements, employment contracts, service agreements, consultancy agreements and employment handbooks and policies. Charlotte is a member of the Employment Lawyers Association, The Law Society and The SRA. To contact Charlotte, visit the Contact Us page. For media enquiries: info@dphlegal.com