This week we look at a case that determines whether an employee has “sought” to take parental leave in the absence of giving formal notice.

Does seeking parental leave demand formal application?

This week’s Employment Appeal Tribunal case is Hilton Foods Solutions LTD and Andrew Wright. The appellant, the respondent in the Employment Tribunal, argued that compliance with formal requirements of the Maternity and Parental Leave Regulations 1999 (MPLR) is necessary to exercise the right to parental leave. However, the claimant contended that seeking parental leave is a factual determination for the Employment Tribunal based on all relevant evidence.

The claimant was employed by the respondent as a Logistics/Supply Chain Manager for just over one year when he was dismissed, which was purportedly by reason of redundancy. The claimant alleged that his dismissal was due to seeking parental leave, despite not formally applying for it. The respondent sought to strike out the claim for lack of prospects, arguing lack of compliance with MPLR provisions that must be fulfilled to exercise the right to parental leave i.e. a formal application in writing.

The application to strike out the claim was considered at a preliminary hearing and set out the assumed facts of the case. The claimant has two children, one with an impairment of autism. The claimant had informal discussions with HR regarding unpaid parental leave; HR confirmed the claimant was entitled to 18 weeks’ leave for each child and could take up to 4 weeks per year but he could be asked to take the leave in one-week blocks. The claimant queried that because his child was disabled, he could take leave in days rather than in weeks according to company policy.

The claimant mentioned to the MD he would be taking parental leave and felt that the response he received was negative as he was told that he would need to be in the office “Monday to Friday, 8-5pm with no exceptions”.  The claimant told the MD he was entitled to take parental leave to which he replied, “so you want to go f*ing legal then”.  The claimant mentioned this conversation to HR which was dismissed as “Pete just being Pete”.  The Judge made no findings of fact as to what was said as it was not necessary for determining the preliminary issues.

The EAT explained in broad terms that an employee is protected from dismissal for taking parental leave and protection extends to those who have expressed intent to take parental leave. The Judge described the provisions as “something of a mosaic” and to understand the full extent of that protection it is necessary to inspect the mosaic.

The Judge ruled against the strike-out application, highlighting that seeking parental leave does not necessarily demand formal application as per MPLR. Citing precedent, it was established that informal enquiries about parental leave could constitute seeking it. The Judge emphasised that the connection between seeking leave and dismissal should be evaluated at the final hearing.

The respondent appealed the decision, asserting that seeking parental leave requires formal application as per MPLR. However, the Judge rejected this argument, emphasising a broader interpretation of seeking parental leave beyond formalities.

Ultimately, the appeal was dismissed, affirming the Tribunal’s decision not to strike out the claim.

Takeaway Points

According to the respondent’s analysis, even if an employee clearly communicates their intention to take parental leave to their employer and seeks guidance on the process, if they are dismissed to hinder the exercise of that right, the protection would not be applicable because a formal application has not been made. Clearly, an employee in such circumstances has actively attempted to take parental leave.

The decision in this case highlighted the Tribunal’s discretion to determine if an employee has sought parental leave based on the circumstances. This case features the nuanced interpretation of “sought” to take parental leave and the word “sought” is an ordinary word that the Tribunal is best placed to interpret considering all the relevant facts.

If you or someone you know are dealing with a similar issue, please contact us for further assistance.