Automatic unfair dismissal: parental leave request

In this recent decision, the Employment Appeal Tribunal (EAT) considered whether an employee had ‘sought’ to take a period of parental leave, for the purposes of claiming automatic unfair dismissal on that basis, when he had not made any formal application for the leave. 

Hilton Foods Solutions Ltd v Wright [2024] EAT 28 

Facts of the case 

The claimant, W, was employed as a logistics manager from February 2019 to March 2020, when he was dismissed by reason of redundancy. He claimed that his dismissal was not genuinely for redundancy, but because he had indicated a desire to take a period of parental leave.  

W did not have the two years of service required for bringing a claim of ordinary unfair dismissal, but he claimed that he had been automatically unfairly dismissed for seeking to take parental leave. He had not made any formal application for the leave but alleged that he held informal discussions with various managers. He claimed that when he told the respondent’s Managing Director that he would be seeking to take parental leave, the Managing Director responded that he would need to be in the office “Monday to Friday, 8-5pm with no exceptions”. When he suggested that he was eligible to take parental leave, he alleged that the Managing Director had replied “so you want to go f*ing legal then”. 

The respondent applied to the tribunal to strike out W’s claim, on the basis that it had no reasonable prospects of success. Since W had not made a formal application for parental leave, the respondent argued that he had not “sought to take parental leave” within the meaning of the relevant regulations, meaning that he did not have protection from automatic unfair dismissal on that basis. The strike out application was refused by the tribunal, which held that by making informal enquiries about taking parental leave it was arguable he had ‘sought’ to take parental leave. The respondent appealed to the EAT. 

EAT decision 

The EAT has dismissed the respondent’s appeal. It agreed with the tribunal’s conclusion that there was no absolute requirement for an employee to give formal notice under the parental leave regulations in order to have ‘sought’ to take the leave, meaning they were protected from dismissal on that basis.  

Previous case law has established that a wide and purposive interpretation should be taken to the parental leave regulations. In the EAT’s view, it could not have been Parliament’s intention that employees were only protected after they had submitted formal notice to take parental leave. Otherwise, an employee who had clearly and unambiguously informed their employee that they were taking parental leave, but who had not submitted a formal application, would have no protection from detriment or dismissal. 

The Birketts view 

This decision only concerns a preliminary issue in the case, relating to the respondent’s strike out application. It does not mean that the claimant has succeeded in his claim – it only means that his case has been allowed to proceed to a full hearing, at which a tribunal will determine the merits of the claim. 

However, the decision is a timely reminder that employees seeking to take any type of leave, or seeking flexible working arrangements, are protected in law. April sees the introduction of several important employment law reforms, including the new right to take carer’s leave for employees with caring responsibilities. Employers must ensure that employees are not subjected to any detriment, or dismissed (including being selected for redundancy), on the basis that they have taken, or sought to take, a period of statutory leave, or made (or proposed to make) a flexible working application.