Can a short service employee dismissed on grounds of redundancy or for any other reason, claim automatic unfair dismissal on the grounds that the real reason for the dismissal related to the intention to exercise his / her statutory right of taking parental leave, but in circumstances where the employee has not made a formal application for such leave?
The Answer
The Employment Appeal Tribunal decision in the case of Wright v Hilton Food Solutions 2024 would seem to suggest on the facts of that case that no formal application was required to take parental leave where a short service employee who had a disabled son with autism was dismissed due to redundancy but alleged that the real reason for the dismissal was that he “sought” to take parental leave and had asked his employer how to do so in November 2019, late 2019 and early 2020 but was dismissed 13 March 2020 so as to prevent him from making a formal application for parental leave.
The Risk/Threat
The protection from dismissal because an employee has “sought” to take parental leave arises from a combination of Section 99 of the Employment Rights Act 1996 (ERA), and Regulation 20 of Maternity and Parental Leave etc. Regulations 1999 (MPLR) and breach of such rights could result in a very expensive employment tribunal claim for an employer.
What You Need To Do
The decision of the Employment Appeal Tribunal seems to suggest that there is no absolute requirement that the employee must have given formal notice to take parental leave pursuant to paragraphs 1(b) and 3 of Schedule 2 to the Maternity and Parental Leave Regulations 1999 (MPLR) thus it appears that the meaning within (MPLR) over exercising parental leave rights is to be given a wider purposeful interpretation by a pragmatic common-sense approach based on the facts of each case.
If you require any further assistance, please do not hesitate to contact our HR/Legal advice line team at 01455 852 028.
