Employment Law Cases

Seeking to take parental leave

On a straightforward reading of the relevant regulations, there was no absolute requirement that an employee must have given notice to take parental leave for them to have ‘sought’ to take parental leave.

An employee is protected against being dismissed because he or she took - or ‘sought’ to take - parental leave. The relevant regulations are the Maternity and Parental Leave etc. Regulations 1999 (MPL), not perhaps known for their startling clarity.

Background

Mr Wright, who has an autistic son, started work for his employer in March 2019. Towards the end of 2019 and the start of 2020 he had informal discussions with his employer about taking unpaid parental leave. HR told him in February 2020 about the application process which required a written request to his line manager 21 days before taking leave. Later that month he mentioned his intention to take leave to the MD which was not favourably received. Shortly after another meeting with HR to discuss the leave, Mr Wright was dismissed for redundancy.

Believing that the real reason for his dismissal was his attempt to take parental leave, Mr Wright lodged a tribunal claim for unfair dismissal. He accepted that at no time had he made a formal written application for parental leave. The law states that an employee is to regarded as unfairly dismissed if the reason, or principal reason, is connected with the fact that he or she ‘took or sought to take’ parental leave (MPL Regulations, re. 20) – and such a dismissal is deemed automatically unfair (s. 99 Employment Rights Act 1996).

Mr Wright’s employer tried to have his claim struck out on the basis that it had no reasonable prospect of success. They claimed that because he’d not complied with the formal requirements to exercise such a right, he couldn’t legally have ‘sought to’ take parental leave. A preliminary hearing dismissed the strike out application and Mr Wright’s employer appealed.

EAT decision

The appeal was dismissed.

The EAT carried out an exhaustive examination of the relevant law. It was not persuaded by the employer’s argument. If Parliament’s intention was to limit the protection against dismissal to employees who have given notice so that they are entitled to take parental leave, 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.

It was clear that a wide and purposive interpretation should be taken to the MPL regulations. If the employer’s argument was to succeed, various consequences would follow that would be incompatible with such a purposive interpretation. For example, even if an employee had unambiguously informed his or her employer of a decision to take parental leave and, for example, asked how to do so, and is dismissed to prevent the exercise of that right, the protection would not apply, because the employee would not have made the formal application. The EAT failed to see how, applying the normal English meaning, an employee in such circumstances has not ‘sought’ to take parental leave.

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. While giving notice to take parental leave will, save in exceptional circumstances, demonstrate that an employee has ‘sought’ to take parental leave, it is not the only way that the fact that the employee has sought to take parental leave can be evidenced.

Comment

This is a common sense decision by the EAT. Often employees will have discussions informally ahead of actually making the formal application and if the legislation was not worded in this way, then those employers trying to dispense with the services of employees knowing they are about to make an application would escape liability. However, an obvious downside to this wording is that all employees under two years’ service with children might now say that they might take parental leave and any attempt to dismiss them will lead to a claim of automatic unfair dismissal.