CASE UPDATE: Hilton Foods Solutions v Wright: Employee dismissed for seeking to take unpaid parental leave
Under the Maternity and Parental Leave Regulations 1999 (MPLR), employees with one year’s service or more are entitled to take unpaid parental leave of up to 18 weeks for each child before they turn 18 (capped at four weeks per year for each child). Parental leave must be taken in whole weeks (i.e. not days) unless the employer agrees otherwise or if the child has a disability.
There are certain notice requirements an employee must comply with in order to take unpaid parental leave. Namely, an employee must give 21 days’ notice of their intention to take such leave. Unless an employer requests it, this doesn’t have to be in writing.
Individuals’ employment rights are protected during any period of unpaid parental leave and they will continue to accrue holidays during such leave. Employers cannot refuse or cancel unpaid parental leave however they can postpone it for up to 6 months, so long as they write to the employee within 7 days of their request explaining why the leave needs to be postponed and giving other suitable dates.
Employers cannot dismiss an employee or subject them to a detriment because they have taken unpaid parental leave or ‘sought to take’ such leave. The interpretation of ‘seeking to take’ unpaid parental leave was recently explored by the Employment Appeals Tribunal (EAT) in the case of Hilton Foods Solutions v Wright, after the Claimant was dismissed purportedly on the grounds of redundancy. The Claimant alleged that he had in actual fact been dismissed due to him seeking to take unpaid parental leave. The Respondent argued that the Claimant had not complied with the statutory requirements in requesting such leave, that he therefore could not as a matter of law sought to take unpaid parental leave and as such his claim had no prospect of success.
Mr Wright (the Claimant) was employed by the Respondent from 4 February 2019 until 13 March 2020. He had two children, one being a son who had been diagnosed with autism. In late 2019 and early 2020 the Claimant had informal discussions with his line manager and HR about unpaid parental leave. On 7 February 2020 a member of the Respondent’s HR team emailed the Claimant in response to his queries, setting out how he could formally apply to take unpaid parental leave. The Claimant alleged he had further conversations with the Respondent regarding such leave and received negative responses including a statement that he would need to be in the office “Monday to Friday, 9 – 5, with no exceptions”. The Claimant was dismissed on 13 March 2020, with the Respondent asserting the reason as redundancy. The Claimant subsequently brought a claim under Regulation 20 of the MPLR.
The EAT considered the meaning of taking or having ‘sought to take’ unpaid parental leave, in line with the legislation. It was stated that a wide and purposive approach should be adopted when interpreting the MPLR and the Judge stated that on a straightforward reading of the MPLR there is no absolute requirement for an employee to have given formal notice to take unpaid parental leave in order to have “sought” to take such leave. It was stated that “sought” is an ordinary English word that should be interpreted giving consideration to all of the relevant facts. Therefore, although the Claimant had only engaged in informal discussions with the Respondent regarding unpaid parental leave, stating his intention to take such leave at some point in the future, this was enough to demonstrate he had ‘sought’ to take the leave in line with the protections afforded by the MPLR. The Respondent’s application to strike out the Claimant’s claim was therefore dismissed on this basis.
Employers should be particularly careful when dealing with requests for family leave from employees (including unpaid parental leave, time off for dependants, carer’s leave etc,), even if such discussions are informal. If you are an employer receiving such a request, or an employee seeking to request such leave (and believe you are being treated unfairly as a result), the Employment Team at Rollits can provide useful advice and assistance.
