Employers should note that an employee may be able to claim automatic unfair dismissal if dismissed because they have indicated that they wish to take parental leave, even if they have not yet served the formal notice required.
An employee dismissed because they “took or sought to take” parental leave can bring a claim for automatic unfair dismissal without needing two years’ continuous service. The EAT has ruled that this protection can apply without the employee needing to have complied with the formal notice requirements set out in legislation or an employer’s policy.
In Hilton Foods Solutions Ltd v Wright the employee had had informal discussions about taking unpaid parental leave with his line manager and HR, making clear that he intended to take it, prior to being dismissed purportedly by reason of redundancy. The employee claimed automatically unfair dismissal on the basis that the real reason was his seeking to take leave. The employer applied to strike out the claim, arguing that the lack of formal notice meant the employee had not “sought” leave, but this was rejected. The EAT ruled that “seeking to take” leave did not necessarily require the employee to have given formal notice as there were other ways of evidencing this, and tribunals are best placed to determine on the facts whether the stage has been reached at which it can be said that an employee has sought to take leave.
Detriment for taking or seeking to take parental leave is also unlawful, and the protection against detriment or dismissal also applies in relation to taking or seeking to take other types of family leave. In most cases (but not maternity leave, parental leave and time off for dependants), there is also protection where the employer believed that the employee was likely to take the leave.
