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Parental leave: had an employee ‘sought to take’ parental leave?

Legal intricacies of parental leave protection in the workplace through the compelling case of W, a logistics manager fighting for his rights after dismissal. Delve into the interpretation of ‘sought to take’ parental leave and its implications in employment law, shedding light on employee safeguards and employer obligations.

Provided they have one year’s continuous service, an employee can take up to four weeks’ unpaid Parental Leave (PL) each year for the purpose of caring for a child under 18 for whom they are responsible. In common with other forms of statutory family leave, an employee is protected from suffering a detriment or being dismissed if the sole or principal reason for their treatment is the fact that they took, or ‘sought to take’, PL.

W, a logistics manager, began employment in February 2019. Around a year after his employment started, W was dismissed purportedly due to redundancy. Although he did not have the required service to bring an ordinary unfair dismissal claim, W claimed that his dismissal was automatically unfair because he had really been dismissed because he had ‘sought to take’ PL. W said that, in the months leading up to his dismissal (late 2019 and early 2020), he had had informal discussions with various personnel at the company, including the managing director and HR, regarding taking some PL. W pointed to an exchange of correspondence between W and the company’s HR department in February 2020 discussing how W could apply for PL and concerning the fact that, as the parent of a disabled child, W was entitled to take PL in single days rather than one-week blocks. W said that, when he had met with the managing director a few days later, he had mentioned his intention to take some PL but that he had received a negative response and had been sworn at. A couple of days after this, W had again emailed HR asking about taking PL. On 13 March 2020, less than a month later, W was dismissed purportedly for redundancy.

The employer made an application for W’s claim to be struck out on the basis that he could not claim automatic unfair dismissal because he had not ‘sought to take’ a period of PL because no formal application for PL had been made by him prior to his termination. The employment tribunal rejected the employer’s strike out application and the employer appealed that decision.

The EAT dismissed the employer’s appeal and held that an employment tribunal must make a factual determination, having considered all the evidence, whether an employee has ‘sought to take’ PL. Although formal notice to take a period of PL given by the employee to the employer would obviously satisfy this requirement, it is not an absolute requirement for formal notice to have been given to evidence the fact an employer has ‘sought to take’ PL. W’s claim will now return to the employment tribunal for a full hearing of his claim. This appears to be the first time the EAT has considered the meaning of the phrase ‘sought to take’, so it is useful to have a decision from the EAT confirming that a formal notice to take leave is not required. The legislation relating to other forms of family friendly leave (maternity, paternity, adoption, shared parental and parental bereavement leave) have similar protections against detriment/dismissal which use mirror wording, so this finding is likely to apply in a similar way.

Source: Lexology

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