Hilton Foods Solutions Ltd v Andrew Wright

The Employment Appeal Tribunal dismissed the employer's appeal against a preliminary decision refusing to strike out a claim of automatic unfair dismissal brought under section 99 Employment Rights Act 1996 and regulation 20 of the Maternity and Parental Leave Regulations 1999. The central legal issue was the meaning of the phrase "sought to take" parental leave. The tribunal held that whether an employee has "sought" to take parental leave is a question of fact for the Employment Tribunal and does not require, as an absolute rule, that the employee has complied with the formal notice requirements in paragraphs 1(b) and 3 of Schedule 2 to the Regulations.

The court applied a purposive construction of the Regulations, noting that the statutory scheme distinguishes between an employee who "sought to take" parental leave and an employee who is able to "exercise" the right by giving the formal notice required by Schedule 2. While compliance with the formal notice provisions will normally demonstrate that an employee has "sought" to take leave, other conduct (for example, unambiguous communications of intention to take parental leave) can suffice. The Employment Tribunal is best placed to assess, on the evidence, whether a stage has been reached such that the employee has sought to take parental leave.

This appeal concerned a preliminary ruling on an application to strike out a claim of automatic unfair dismissal. The claimant, employed as a Logistics/Supply Chain Manager from February 2019 until his dismissal in March 2020, alleged that his dismissal was connected with the fact that he had sought to take parental leave for his disabled son. The employer applied to strike out the claim on the basis that the claimant had not complied with the formal notice requirements in Schedule 2 to the Maternity and Parental Leave Regulations 1999 and therefore could not, as a matter of law, be said to have "sought to take" parental leave.

Nature of the claim: an allegation of automatic unfair dismissal under section 99 ERA and regulation 20 MPLR, relying on the protection for employees who "took or sought to take" parental leave.

Procedural history: the strike out application was considered at a preliminary hearing by Employment Judge Mason on 25 May 2022, who refused to strike out the claim. The employer appealed to the Employment Appeal Tribunal.

Issues framed: (i) whether the phrase "sought to take" parental leave requires compliance with the written notice regime in paragraphs 1(b) and 3 of Schedule 2 MPLR as a precondition; and (ii) whether the Employment Tribunal's refusal to strike out was legally correct.

Court's reasoning: the EAT endorsed a purposive construction of the MPLR. The Regulations create distinct concepts: the right to "exercise" parental leave (which requires the formal notice and related conditions in Schedule 2) and the separate protective concept of having "sought to take" parental leave. Parliament could have made the protection conditional on strict compliance with Schedule 2 if that had been intended. The tribunal noted authority on interpretation (Atkins v Coyle Personnel plc) and considered but did not follow obiter comments in Qua v John Ford Morrison. It concluded that whether an employee has "sought" to take parental leave is a factual determination for the Employment Tribunal and that informal enquiries or clear communications of intent can, in appropriate cases, amount to "seeking" to take leave even in the absence of a formal written application and statutory notice period. For these reasons the appeal was dismissed and the strike out decision upheld.

The appeal is dismissed. The Employment Appeal Tribunal held that the phrase "sought to take" parental leave in regulation 20 of the Maternity and Parental Leave Regulations 1999 is not, as a matter of law, confined to situations where the employee has complied with the formal notice requirements in paragraphs 1(b) and 3 of Schedule 2. Whether an employee has "sought" to take parental leave is a question of fact for the Employment Tribunal to determine on the evidence; a purposive interpretation of the Regulations supports that approach.

Preliminary Hearing before Employment Judge Mason (Employment Tribunal) on 25 May 2022 refusing to strike out the claim; appeal to the Employment Appeal Tribunal, reported as [2024] EAT 28, dismissed on 7 March 2024.