According to the recent Employment Appeal Tribunal (‘EAT’) decision in Wright v Hilton Food Solutions, an employee can bring a claim for automatic unfair dismissal if they are dismissed whilst deciding whether to take parental leave, even when a formal application for parental leave has not yet been made.
In this case, the Claimant, a supply chain manager who had been employed for less than 2 years, was made redundant in March 2020. Prior to his redundancy, he was deciding whether to take parental leave under the Maternity and Parental Leave etc Regulations 1999. He had discussed this informally with his employer in late 2019 and February 2020, although had not yet made any formal application to his employer. Following his selection for redundancy and subsequent dismissal, the Claimant brought a claim for automatic unfair dismissal under section 99 of the Employment Rights Act 1996 and Regulation 20 of the Maternity and Parental Leave etc Regulations 1999, alleging that the real reason for his redundancy was because he was about to apply for parental leave.
The Claimant succeeded in his claim, the EAT finding that it is enough for an employee to show that they had ‘sought’ to take parental leave, without having to make a formal application.
The implication of this case for employers is that they should therefore:-
- carefully consider any issues that may give rise to arguments that an employee has been unfairly selected for redundancy or unfairly dismissed even if they have less than the required 2 years’ service to bring an ordinary claim for unfair dismissal; and
- In respect of an employee’s statutory right to take parental leave, the right not to be dismissed in connection with this right arises when the employer is put on notice of the employee’s intention to exercise this right.
It therefore follows that if you know that an employee has parental responsibilities and they have, even if only informally, notified you of the possibility of availing themselves of their statutory right to take parental leave, then this could give rise to a claim for automatic unfair dismissal if they can show that this was the reason or principle reason for their dismissal.
Whilst in this case the EAT clearly found that the Claimant’s selection for redundancy was because of the fact that he had sought to take parental leave, it serves as a reminder to employers that they need to look at all the facts surrounding an employee’s particular circumstances before making any decision to dismiss.
If you would like any support in this area, please contact our employment team.
