When is an employee protected against dismissal in connection with parental leave?

Employers will be aware that employees who take maternity leave are protected from detriment and dismissal in connection with exercising this right. These protections also extend to other forms of family leave, including adoption, paternity, shared parental and parental leave. 

As traditional gender roles within the family and expectations of work-life balance continue to change, employers need to ensure that they are aware of the family-related rights and protections which apply to employees regardless of their gender. The Women and Equalities Select Committee reported in 2018 that men faced mockery from colleagues due to taking time off for childcare. And some years later on, men who suggest taking leave from work to care for a child may still be subject to stigma and gender-related bias and be put off from actually taking such leave.  

A recent case in the EAT has highlighted that the statutory protection extends to employees who make informal enquiries about taking statutory parental leave but do not go on to apply formally for such leave.  

What is parental leave? 

The right to statutory parental leave is available to birth parents, adoptive parents and those who have or expect to have responsibility for a child if they have one year's continuous employment.  

Eligible employees can take up to 18 weeks' unpaid parental leave for each child at any time before the child's 18th birthday. Under the statutory scheme, employees can take no more than four weeks' leave in respect of the child per year and leave can only be taken in whole week blocks (unless the child is entitled to a disability living allowance, armed forces independence payment or personal independence payment). 

How does the protection from dismissal work? 

Under Regulation 20 of the Maternity and Parental Leave etc Regulations 1999 (the Regulations), a dismissal is automaticallyunfairif the reason or principal reason for the dismissal is connected with the fact that the employee “took or sought to take” parental leave. 

If the tribunal determines that the reason or principal reason for the dismissal was that the employee took or sought to take parental leave, the dismissal will be found to be unfair, no matter what process was followed by the employer. 

It is important to note that this claim is one of a number of automatic unfair dismissal claims which can be brought without two years’ service. 

Case details: Hilton Foods Solutions Ltd v Wright  

Mr Wrightcommenced work withHilton Food Solutions (HFS) in March 2019. In November 2019, he discussed the possibility of taking unpaid parental leave to care for his autistic son. He was sent information about how to apply for this leave. Mr Wright mentioned his intention to apply for parental leave at a meeting with the managing director. Mr Wright alleged that the response was negative and that he was toldhe would need to be in the office "Monday to Friday, 8-5pm with no exceptions". Mr Wright alleged that, when he told the managing director he was eligible for parental leave, the response was “so you want to go f*ing legal then”.A further meeting then took place with HR to discuss parental leave in February 2020. Mr Wright did not go on to apply for parental leave. 

On 13 March 2020, Mr Wright was dismissed on the ground of redundancy. He brought a claim for automatic unfair dismissal, alleging that the real reason for his dismissal wasthe fact that he had sought to take parental leave.  

HFS applied to strike out the claim, arguing that Mr Wright had not “sought to take” parental leave as he had not complied with the statutory parental leave notice requirements under the Regulations.  

The employment tribunal dismissed the strike out application at a preliminary hearing. The employment judge noted that the parties agreed that Mr Wright had made informal enquiries about taking parental leave and made it clear on a number of occasions that this was his intention. On that basis, the judge decided that it was arguable that Mr Wright had “sought to take” parental leave despite the lack of a written application and statutory notice. 

HFS appealed this preliminary decision but the EAT dismissed the appeal. The EAT noted that the legislationincludes 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: if Parliament had wished to limit automatic unfair dismissal protection to the latter group, it could have referred only to compliance with the notice provisions.  

The EAT noted that case law suggests that a wide and purposive approach should be adopted to the interpretation of the Regulations. It did not consider HFS’s interpretation of the Regulations to be compatible with this approach. It pointed out that it could not be right that the protection would not apply“if an employee has 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” simply because the employee had not made a formal application.  

The EAT stated that the tribunal should consider as a matter of fact whether an employee had “sought to take” parental leave. Giving notice under the statutory scheme would be one way, but not the only way, to evidence having done so.   

This is only a preliminary decision and the employment tribunal will now need to decide whether Mr Wright was in fact dismissed because he expressed an intention to take parental leave, or because of a genuine redundancy situation. However, this case does set a precedent when it comes to the extent of protection for those who have sought to take parental leave. 

Next steps for employers 

The statutory rules on various types of family leave are complex and employers should ensure that decision makers and administrators have a good understanding ofthese rules, as well as access to legal advice in difficult or less usual cases.  

Clear and workable policies which are regularly reviewed can also help to protect the organisation and ensure that employee rights are well understood and respected. Training on such policies should include not only the rules around taking leave, but also the protections which stem from having sought to take such leave.  

Please contact us to discuss how we can help.