Hilton Foods Solutions Ltd v Andrew Wright

An employee may have sought to take parental leave for the purposes of protection from automatic unfair dismissal without having given the formal notice required to exercise the statutory entitlement to that leave. The notice provisions in Schedule 2 govern exercise of the entitlement; they do not impose an absolute threshold for the distinct protection in regulation 20.

Whether an employee has sought parental leave is a factual question for the Employment Tribunal. It must assess all the evidence, give the Maternity and Parental Leave etc. Regulations 1999 a wide and purposive construction, and apply the ordinary meaning of “sought”. Formal notice will ordinarily demonstrate that leave was sought, but it is not the sole means of doing so.

The claimant, a Logistics/Supply Chain Manager, was dismissed on 13 March 2020, purportedly for redundancy. He alleged that the real reason was that he had sought parental leave to assist with caring for his disabled son.

On assumed facts for a strike-out application, the claimant had made informal enquiries and discussed parental leave with management and HR, but had not made a formal written application specifying dates or giving 21 days’ notice. The Employment Tribunal refused the employer’s application to strike out his automatic-unfair-dismissal claim.

The employer appealed. The central issue was whether an employee can have “sought to take” parental leave under regulation 20 without complying with the notice requirements in Schedule 2 to the Maternity and Parental Leave etc. Regulations 1999.

1. Appeal dismissed. The Employment Tribunal did not err in refusing to strike out the automatic-unfair-dismissal claim. There is no absolute requirement that an employee must have given notice under paragraphs 1(b) and 3 of Schedule 2 to the Maternity and Parental Leave etc. Regulations 1999 before being capable of having “sought” parental leave for regulation 20.

2. The statutory language distinguishes an employee who has sought to take parental leave from an employee who may exercise the entitlement. Schedule 2 regulates exercise of the default statutory entitlement. Had Parliament intended the dismissal protection to depend on compliance with those formalities, it could have said so expressly.

3. A contrary construction would be inconsistent with the regulations’ purpose. It would deny protection to an employee who clearly tells the employer of an intention to take leave and is dismissed to prevent it, merely because no formal application has yet been made. It would also make “sought” bear a different meaning where contractual parental-leave arrangements, rather than the default scheme, apply.

4. The word “sought” has its ordinary meaning. Whether the necessary stage has been reached is a factual issue for the Employment Tribunal after considering all relevant evidence. Notice under Schedule 2 will, save in exceptional circumstances, demonstrate that leave was sought, but it is not the only possible evidence.

5. Atkins v Coyle Personnel PLC, [2008] IRLR 420, supported a wide and purposive approach to the regulations. The observations in Qua v John Ford Morrison, [2003] I.C.R. 482, did not assist: they were obiter and its analysis did not work well where an employee had only sought, rather than taken, leave.

• Employment Appeal Tribunal: dismissed the employer’s appeal and upheld the refusal to strike out the automatic-unfair-dismissal claim under section 99 of the Employment Rights Act 1996 and regulation 20 of the Maternity and Parental Leave etc. Regulations 1999.
• Employment Tribunal: at a preliminary hearing on 25 May 2022, Employment Judge Mason refused to strike out the claimant’s claim or make a deposit order.