Parental Leave Dispute: Hilton Foods Solutions V Wright
In a recent ruling, the Employment Appeal Tribunal (EAT) shed light on what it means for an employee to ‘seek’ parental leave under the Maternity and Parental Leave Regulations 1999 (MAPLE Regs).
Employment Solicitor, Mohammed Balal, looks at the case of Hilton Foods Solutions v Wright [2024] EAT 28 which provides valuable insights into the interpretation of these regulations and the practical implications for both employers and employees.
Background
Mr Wright, a former employee of Hilton Foods Solutions Ltd, alleged he was dismissed for discussing taking time off to look after his new child without pay. Mr Wright had not formally asked for this time off.
The Employment Judge had to take his side of the story seriously and did not dismiss his claim immediately. The main question that needed to be considered was whether simply discussing and emailing about wanting parental leave counted as officially asking for it under the law.
Overview
The crux of the matter revolves around the requirement for employees to ‘seek’ parental leave as outlined in the Maternity and Parental Leave Regulations 1999. Paragraphs 1(b) and 3 of Schedule 2 stipulate the necessity for employees to give notice when intending to take parental leave.
While formal notice is typically expected, the recent ruling highlights that the absence of such notice does not automatically negate an employee’s intention to seek leave.
The Employment Appeal Tribunal emphasised that determining whether an employee has sought parental leave requires a factual inquiry by the employment tribunal, considering each case’s unique circumstances.
Outcome
The ruling implies a flexible approach to the interpretation of the regulatory framework surrounding parental leave. It recognises that the dynamics of the employment relationship can vary significantly and, consequently, the manifestation of an employee’s intention to take parental leave may not always conform to rigid procedural requirements.
Employers are advised to exercise diligence in assessing requests for parental leave and to engage constructively with employees to ascertain their intentions. While formal notice may be indicative of an employee’s desire to take parental leave, it should not be regarded as the sole determinant. Other factors, such as verbal communication or contextual cues, may also contribute to establishing an employee’s intention to seek parental leave.
This ruling broadens the protection against dismissal for employees who express intent or take actions toward parental leave, even if formal procedures aren’t strictly followed. The Employment Appeal Tribunal clarified that seeking leave extends beyond merely exercising formal rights, safeguarding employees facing dismissal for actions related to parental leave, even without formal notification.
It emphasises the importance of interpreting employment safeguards expansively to uphold employees’ rights effectively.
Key Lessons for Employers
The case underscores the importance of understanding the legal protections afforded to employees in relation to parental leave and highlights the consequences for employers who fail to adhere to these protections.
Anticipatory Protection:
Employers must recognise that the protection against dismissal can arise before an employee formally notifies them of their intention to take parental leave.
Even if an employee has not yet given notice, if the employer is aware of the employee’s impending parental leave plans, any dismissal linked to this could be deemed automatically unfair. Therefore, employers should exercise caution and refrain from taking any actions that could be construed as prejudicial against employees intending to take parental leave.
Discrimination Risk:
Dismissals or adverse treatment related to parental leave can give rise to claims of discrimination.
Employers must ensure that they do not discriminate against employees based on their parental status or intention to take parental leave. Any adverse actions taken against employees in these circumstances should be objectively justified and not linked to the employee’s parental responsibilities.
Procedural Fairness:
Employers should adhere to fair and transparent procedures when considering dismissals or other actions affecting employees’ parental leave rights.
This includes providing adequate notice, offering opportunities for consultation, and ensuring that decisions are made impartially and without bias.
Documentation and Record-Keeping:
Maintaining accurate records of communications, decisions, and actions related to parental leave can serve as crucial evidence in the event of disputes or legal proceedings.
Employers should document any discussions or correspondence regarding parental leave requests and ensure that all relevant information is recorded in accordance with data protection regulations.
How does parental leave work?
Parents have the legal right to take unpaid time off from work in order to take care of their children. This type of leave is referred to as “ordinary parental leave” or “unpaid parental leave”.
It is separate from other types of employee leave entitlements, such as:
- Maternity, paternity and adoption leave and shared parental leave – for when an employee is having a baby or adopting a child
- Holiday
Each parent is entitled to up to 18 weeks of unpaid leave for each child and adopted child, which can be taken until the child turns 18.
The maximum amount of parental leave entitlement that can be taken in a year is 4 weeks per child unless the employer agrees otherwise.
Employees must take parental leave in whole weeks instead of days unless the employer agrees otherwise or their child is disabled. They don’t have to take all the leave at once.
Who is entitled to unpaid parental leave?
To be eligible for unpaid parental leave, employees must meet the following criteria:
- Have worked at the company for over a year
- Be listed on the child’s birth or adoption certificate or expect to have parental responsibility
- Not be self-employed or categorised as a ‘worker’ like agency workers or contractors
- Not be a foster parent unless they’ve gained parental responsibility through legal channels
- The child must be under 18
Employers may request proof, such as a birth certificate, but it should be reasonable and not required for every leave request.
How much is parental leave pay?
Parental leave is usually unpaid but some employers might offer pay. This should be specified in the employment contract.
Employees are required to provide 21 days’ notice before their planned start date. If they or their partner are expecting a baby or in the process of adopting, the notice period is 21 days before the week the baby or child is due to arrive.
It is mandatory for employees to specify the exact start and end dates in their notice. However, unless specifically requested by the employer, this confirmation does not need to be in writing.
Can an employer refuse parental leave?
Employers are not allowed to refuse or deny parental leave entirely. However, if the leave is going to cause significant issues at work, such as missing an important deadline, the employer can postpone it. This postponement can last for up to 6 months from the date the employee initially requested the leave.
How can Butcher & Barlow help?
Our Employment Solicitors are here to help you with parental leave matters. We will ensure you understand what you need to do as an employer and how to follow the law properly. Our experts will give you advice on how to deal with any risks and avoid expensive legal problems.
We will explain the rules and laws in simple and clear terms and can help you create policies and procedures that meet legal requirements and keep your workplace running smoothly.
By working with us, you can reduce the chances of facing disputes or going to court over employment issues related to parental leave. Our goal is to make sure you are compliant with the law and can handle any challenges that come your way.
Mohammed can be contacted on 0161 764 4062 or emailed at mbalal@butcher-barlow.co.uk