Parental leave without formal application

Parental leave is a type of leave which allows parents and those with responsibility for a child (providing they have at least one year of service) to take unpaid time off for the purpose of caring for that child. The right is set out in the Maternity & Parental Leave Regulations 1999 (the Regulations).

Employees are entitled to 18 weeks of unpaid leave per child, with the time off needing to be taken before they reach the age of 18 in most cases.

Under the regulations, an employee must give written notice that they intend to take parental leave. Employers can postpone a request by up to six months on business grounds. They cannot refuse a valid request outright. The Regulations state that a dismissal will be automatically unfair if the reason for it is that the employee has taken or sought to take parental leave.

In the recent case of Wright v Hilton Foods, the Employment Appeal Tribunal (EAT) looked at whether an employee could argue that they ‘sought to take’ parental leave when they had not actually given written notice of their intention at the relevant time. The claimant worked for the respondent as a supply chain manager. He was made redundant. He alleged that the real reason for his dismissal was that he had sought to take parental leave. The respondent applied for his claim to be struck out on the basis that he could not have ‘sought’ to take parental leave as he had not made a formal application to take it during his employment.

The EAT, allowing the claim to proceed, held that an employee could demonstrate that they had ‘sought’ to take parental leave without actually needing to have made a formal application. The surrounding facts and discussions needed to be looked at.

The EAT held that it could not be right that if an employee unambiguously informed his employer of a decision to take parental leave and, for example, asked how to do so, and was dismissed to prevent the exercise of that right, the protection would not apply just because the employee would not have made the formal application.

Whether an employee has ‘sought’ to take parental leave is a question of fact for the Employment Tribunal having considered the relevant evidence.