The Employment Appeal Tribunal (EAT) has considered what is required for an employee to have "sought" to take parental leave in Hilton Foods Solutions Ltd v Wright. The entitlement to parental leave is set out in the Maternity and Parental Leave etc Regulations 1999 (the MPL Regulations). The MPL Regulations provide that an employee will be automatically unfairly dismissed if the reason, or principal reason, for their dismissal is that they "took or sought to take" parental leave.
Mr Wright was employed by Hilton Foods Solutions Ltd (Hilton) between 4 February 2019 and 13 March 2020 when he was dismissed, purportedly by reason of redundancy. He believed that the real reason for his dismissal was that he had sought to take parental leave and brought a claim for automatically unfair dismissal. He accepted that he had not made a formal written application for parental leave, but he had had informal discussions regarding taking unpaid parental leave with various Hilton personnel in November 2019, late 2019 and early 2020.
Hilton applied to strike out the claim on the basis that it had no reasonable prospect of success, arguing that as Mr Wright had not complied with the provisions of the MPL Regulations (these provide that an employee must give notice specifying the dates on which the period of leave is to begin and must be given at least 21 days before the period begins) he could not have sought to take parental leave. The tribunal rejected the strike out application holding that by making informal enquiries about taking parental leave and making it clear that he intended to do so it was arguable that he had "sought" to take the leave.
The EAT dismissed Hilton's appeal. It held that, on a straightforward reading of the MPL Regulations, there is not an absolute requirement that an employee must have given notice for them to have "sought" to take parental leave. It pointed out that if Parliament had intended to limit the protection against dismissal to employees who had given notice so that they were entitled to take parental leave, wording to that effect could have been used. Instead there were two separate concepts; that of an employee who has sought to take parental leave and that of an employee who is able to exercise a right to parental leave because the relevant notice has been given.
Take note: The decision in Wright shows that it is not strictly necessary for an employee to give formal notice of their intention to take parental leave. As long as they can show that they "sought" to do so (for instance where an informal request is made or discussions about the intention to take leave have taken place) they will be protected from dismissal and detriment.
