UK: Request To Take Parental Leave and Unfair Dismissal
Authors: Graham Mitchell, Ruth Bonino and Sophie Jackson
Mr. Wright was employed as a logistics/supply chain manager for Hilton Foods for just over a year before he was dismissed, purportedly for redundancy. Over a period of three months prior to his dismissal Mr. W had had various informal discussions with Hilton staff about taking unpaid parental leave. He had also spoken to Hilton’s managing director about it and emailed HR to arrange a discussion about taking leave. He did not however ever give formal notice to take parental leave. The Maternity and Parental Leave etc Regulations 1999 provide that in order to be entitled to take parental leave, employees need to have given notice to their employer of the period of leave they wish to take, at least 21 days before the leave is to begin. The Regulations also give employees unfair dismissal protection by making it automatically unfair if the reason, or principal reason for their dismissal is that they “took or sought to take” parental leave.
In an application by his employer to strike out his unfair dismissal claim, Mr. W argued that he had been dismissed because he had “sought to take leave”. Hilton argued that since Mr. W had never given formal notice to take the leave, he was not entitled to unfair dismissal protection.
The tribunal decided (and the EAT agreed) that by making informal enquiries about taking leave and making it clear on a number of occasions that he intended to do so, it was arguable that Mr. W had “sought” to take parental leave despite his lack of written application. Giving notice is not the only way that an employee can seek to take leave. If Parliament had intended to limit the protection to employees who had given notice, wording to that effect would have been used in the Regulations.
Key Action Points for Human Resources and In-House Counsel
Where an employee has indicated their intention to take parental leave but has not yet given formal notice, employers should be aware that protection against automatic unfair dismissal protection can arise, provided what the employee has done amounts to “seeking to take parental leave.” Similar wording is also used in other comparable legislation. The new right to take carer’s leave also gives protection where “the employer believed that the employee was likely to take carer’s leave.”
