Don't ask, do get - employee could "seek" parental leave without formally requesting it

What happened

Mr Wright was employed in February 2019. He was dismissed in March 2020, ostensibly for redundancy. During late 2019 and early 2020 he had informal discussions with his line manager and HR about taking statutory unpaid parental leave when he became eligible after a year’s service. He gave evidence that his employer's managing director reacted negatively to the suggestion that he would take leave, although the tribunal didn't make findings about what was said. Around a month later, he was dismissed for redundancy.

He claimed that he was automatically unfairly dismissed for taking or seeking to take parental leave. As he had less than two years’ service, he couldn't bring an ordinary unfair dismissal claim. His employer applied to strike out his case because he hadn't requested a period of parental leave, so hadn't “sought” to take leave and wasn't protected against dismissal. An employment tribunal rejected that application and the employer appealed.

The EAT decision

The question for the EAT was whether an employee could establish that they had “sought” to take leave even if they hadn't actually requested it. The EAT decided that in appropriate circumstances they could.

Although an employee is only entitled to take parental leave if they have notified their employer of the period of leave they want to take, it didn't follow that Parliament intended to limit employment protection to those who had given notice. Earlier cases established that tribunals should interpret the legislation widely and in a common sense way.

On the employer’s case, an employee who had told their employer that they intended to take leave and asked how to exercise the right wouldn't be protected if they were dismissed before they could make a formal request. It was difficult to see how it could be said that such an employee hadn't “sought” to take leave.

The better approach was to leave it to the employment tribunal, having heard the evidence, to decide whether an employee had “sought” to take leave in any given case. Although giving notice to take parental leave would satisfy the requirement, it's not a pre-requisite to protection.

Next steps

The decision is interesting because it’s the first time the EAT has considered what constitutes “seeking” to take parental leave. The same language applies to protection in relation to paternity leave and adoption leave, amongst other rights, so the decision is likely to be relevant in a range of contexts.

Employers should be aware that an employee may be protected against detriment or dismissal for reasons connected to family leave if they signify an intention to take leave, even if they haven't formally requested it. The exact point at which rights crystallise will be a question for a tribunal if there’s a dispute.

Authored by Jo Broadbent, Eleanor Doubleday and Stefan Martin.