Written by JMW Solicitors LLP
In the case of Hilton Foods Solutions Ltd v Andrew Wright: [2024] EAT 28, the Employment Appeal Tribunal considered Mr Wright’s claim for automatic unfair dismissal after he sought to take parental leave but did not comply with the Maternity and Parental Leave Regulations 1999 (MPL Regulations) of actually providing notice to take the parental leave.
Facts
Mr Wright was employed by the Respondent company as a Logistics/Supply Chain Manager from 4 February 2019 until 13 March 2020 when he was dismissed by reason of redundancy. Mr Wright however, contended that the real reason for his dismissal was that he had sought to take parental leave.
Towards the end of Mr Wright’s employment with the Respondent company, Mr Wright had informal discussions where he had enquired with various personnel including his Line Manager and HR about unpaid parental leave. Mr Wright was informed of the process of requesting the leave including the requirement to provide written notice.
On questioning, Mr Wright admitted to the Tribunal that he knew he had to make a formal application for parental leave and that he did not at any time make a formal written application before his employment ended.
Regulations
Schedule 2 of the Maternity and Parental Leave Regulations 1999 sets out default statutory provisions, including those that relate to the exercise of the right to take parental leave. Schedule 2, paragraphs 1(b) and 3 of the MPL Regulations state in effect that:
- An employee may not exercise any entitlement to parental leave unless he has given his employer notice of the period of leave he proposes to take; and
- The notice required is notice which:
- specifies the dates on which the period of leave is to begin and end; and
- is given to the employer at least 21 days before the date on which that period is to begin.
Dispute
Mr Wright maintained that he was dismissed for the fact that he had “sought” to take parental leave. The Respondent opposed this and claimed that Mr Wright could not, as a matter of law, have “sought” to take parental leave because he had not complied with the notice requirement in paragraphs 1(b) and 3 of Schedule 2 of the MPL Regulations and as result of which he may not exercise any entitlement to parental leave.
The Respondent company therefore asserted that notice for parental leave must have been given before an employee can be said to have “sought” to take parental leave.
Tribunal Judgment
The Tribunal did not find the Respondent’s analysis persuasive due to its findings that Mr Wright was afforded protections under section 19 and 20 of the MPL Regulations which state in effect:
- An employee is entitled not to be subjected to any detriment by any act, or any deliberate failure to act, by the employer, where the employee has took or sought to take parental leave; and
- An employee who is dismissed for the reason of parental leave will be regarded as unfairly dismissed.
Whilst a preliminary review of schedule 2, paragraphs 1(b) and 3 and sections 19 and 20 of the MPL Regulations may seem to conflict with another; on further analysis, schedule 2 of the MPL Regulations do not state an absolute requirement for employees to give notice to take parental leave but do indicate that an employee may not be able to take parental leave if notice is not provided.
The Tribunal further concluded that it is their duty to determine, as matter of fact from the evidence on each case whether there is a connection between the taking of or seeking leave and the dismissal under section 20 of the MPL Regulations. The Tribunal found in favour of Mr Wright and the Respondent appealed the decision.
EAT Findings
The Employment Appeal Tribunal (EAT) agreed with the Tribunal and went onto state that if Parliament’s intention was to limit the protection against dismissal to employees who have given notice, it could have used the same wording, rather than introducing two concepts: an employee who has sought to take parental leave and an employee able to exercise a right to parental leave because the relevant notice has been given.
The EAT further stated that the word “sought” is an ordinary English word that the Tribunal is best placed to interpret on a proper consideration of all of the relevant facts to determine whether a stage has been reached at which it can be said the employee has sought to take parental leave. The appeal was therefore dismissed.
Conclusions
Employers should therefore be alive to the fact that dismissing employees could result in Employment Tribunal claims even where the dismissed employee has not fulfilled the requirements of providing notice to take leave regardless of the requirements set out in an organisation’s policy or staff handbook but where the employee has “sought” to take the leave.
Organisations should keep clear records of conversations around family leave even if the conversations are informal as they could afford the same “seeking” rights to employees and if those employees are to be dismissed, they should make sure they have taken any leave they were enquiring about.
The same terminology applies to protection in relation to paternity and adoption leave, amongst other rights, so this case is likely to be applicable in a range of contexts for many organisations. We can also see from both the Tribunal’s findings that similar cases in the future are to be reviewed with the facts on a case-by-case basis to really determine what constitutes an employee seeking leave.
