Protection from detriment for seeking parental leave does not require formal notice

  • Employment Law
Someone looking after their toddler.
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Peninsula Team, Peninsula Team

(Last updated )

Employees are protected from suffering a detriment because they have “sought” to take parental leave. The Employment Appeal Tribunal (EAT) had to consider, in the case of Hilton Foods Solutions Ltd v Wright, whether or not informal enquiries about taking parental leave were enough to gain this protection.

Facts

The claimant was employed as a logistics/supply chain manager, working for the respondent for a little over a year before being dismissed on grounds of redundancy. Prior to his dismissal, the claimant had informally discussed taking unpaid parental leave to look after his disabled son with his colleagues, including the HR department, his line manager and the respondent’s managing director. On speaking to the managing director of his intentions, the claimant was reportedly sworn at and told that he was expected to be in the office "Monday to Friday, 8-5pm with no exceptions". This was reported to HR, but the behaviour was dismissed as typical for the managing director. In the end, the claimant did not at any time make a formal request to take parental leave.

Following the dismissal, the claimant brought a claim for automatic unfair dismissal on the basis that the real reason for the dismissal was his intention to request parental leave, and not redundancy as the respondent had purported.

One of my employees is a foster carer, do they get parental leave?

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Employment Tribunal (ET)

At a preliminary hearing, the respondent applied to strike out the claim on the basis that it had no reasonable prospect of success. This argument before the ET was based on the fact a formal request for parental leave was never in fact made, despite the claimant acknowledging that this was a requirement to take the leave. As no formal request had materialised, the claimant had not, the respondent argued, as a matter of law, sought to take parental leave, which is necessary for the legal protection to apply.

This was rejected by the ET. It was held that the claimant had made informal enquiries regarding taking parental leave and made it clear on a number of occasions that he intended to take it. This was sufficient for the ET to find that the claimant had “sought” to take parental leave.

This was appealed by the respondent on the basis that the legislation required a written application to be made in order for it to be said that an employee has sought to take parental leave.

Employment Appeal Tribunal (EAT)

According to the EAT, there is no absolute requirement under the legislation for an employee to give notice for them to have "sought" to take parental leave. The word "sought" is an ordinary English word and in this regard, it should be given its ordinary meaning. Whether or not an employee had sought to take leave under the legislation was therefore a question of fact. Had it been intended otherwise, the legislation would specify that the giving of notice was required for the protection against dismissal to apply, rather than using “sought” instead.

Takeaway points

This provides useful clarity on a particular point of law, and with family-related rights under the spotlight as new entitlements are given and existing ones changed, anything that makes the management of these clearer would be welcomed by employers.

As a result of this case, employers should bear in mind that the protection arises even where an informal request or indication to make one has been made, and that this protection applies before two years’ service is reached. Employees who make such enquiries or indications should be treated reasonably and fairly, both in relation to their leave request, and in any other unrelated proceedings or processes that are undertaken.

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