Background: 

The claimant was employed as a Supply Chain Manager from February 2019 until March 2020 when he was dismissed on the grounds of redundancy.   The claimant brought a claim citing automatic unfair dismissal on the grounds that he wished to take parental leave to look after a disabled son. 

The claimant had made informal enquiries about taking such leave but had never made a formal application.  The respondent sought to strike out the claim as having no reasonable prospect of success on the basis that the claimant did not comply with the notice provisions of the Maternity and Parental Leave etc Regulations 1999 and could not, as a matter of law, been regarded as having sought parental leave. 

Outcome: 

The Tribunal at first instance refused to strike out the claim holding that ‘sought to take parental leave’ within the legislation did not put an absolute requirement on the claimant to make a formal application for such leave.  The claimant submitted that whether an employee had sought to take such leave was a question of fact and for the Tribunal to decide based upon the relevant evidence. 

The EAT dismissed the respondent’s appeal.   They stated that the protection against dismissal arose from a combination of the 1999 Regulations as well as the Employment Rights Act 1996.   The 1996 Act did not stipulate the requirement that notice must have been given to take parental leave – if that was the statutory intention then that should have been made clear.  The EAT also acknowledged some fundamental flaws in the respondent’s reasoning.  The respondent’s argument would mean, in theory, that an employee who makes an informal request about information on taking parental leave but was never given the information or was not given the right at all then they would not have the protection under the legislation because of a failure to give formal notice.  Overall, the legislation does not require an absolute requirement for the employee to give notice of taking leave – the word ‘sought’ means that it is for the Tribunal to decide based upon the facts and it was a question of fact whether they had sought such leave. 

Practical Guidance for Employers: 

A sensible decision from the EAT when it comes to the meaning of ‘sought parental leave’.  The requirement that it be giving notice would put employees at the behest of employers who could refuse to acknowledge it informally or not provide a mechanism for handing in notice of such a request.   As a result, the meaning of ‘sought parental leave’ is to be looked at factually and that will tie into whether an individual has suffered a detriment or been dismissed as a result of it. 

https://assets.publishing.service.gov.uk/media/65e99e263649a20011ed6402/Hilton_Foods_Solutions_Ltd_v_Andrew_Wright__2024__EAT_28.pdf