W, a logistics manager employed since February 2019, was let go in March 2020 supposedly due to redundancy. W  disputed the reason, claiming his dismissal stemmed from his desire to take parental leave.

While W lacked the minimum service time for a standard unfair dismissal claim, he argued for automatic unfair dismissal due to seeking parental leave. Although no formal application was filed, he alleges having informal discussions with managers. He further claims the Managing Director responded with a rigid work schedule demand ("Monday to Friday, 8-5pm with no exceptions") upon learning of his intention to take leave. When W mentioned his eligibility, the Managing Director allegedly retorted with hostility ("so you want to go f*ing legal then").

The company challenged W's claim before the tribunal, arguing it lacked merit due to the absence of a formal application. They asserted that W hadn't "sought to take parental leave" as per regulations, thereby forfeiting protection from automatic unfair dismissal. However, the tribunal rejected their request to strike out the claim. They reasoned that W's informal inquiries about parental leave could be interpreted as "seeking" such leave. The company appealed this decision to the Employment Appeal Tribunal (EAT).

The EAT sided with the tribunal, rejecting the employer's appeal. They agreed – formal notification under parental leave regulations isn't mandatory to be considered "seeking" leave. This grants employees protection from dismissal even without a formal application.

The court emphasised a broad interpretation of parental leave regulations, as established in previous cases. They reasoned that Parliament wouldn't have intended to leave employees unprotected until submitting a formal request. This would leave someone who clearly communicated their intention to take leave vulnerable to dismissal or negative treatment.

This decision is just the first step. While it allows W's case to proceed, it doesn't guarantee his success. A full hearing will determine the merits of his claim.

However, it serves as a reminder for employers. Employees seeking leave or flexible work arrangements have legal protection. This is especially relevant in April, which brings new employment law changes, including carer's leave. Employers cannot penalise (through negative treatment or dismissal, even in redundancy situations) an employee who takes statutory leave, seeks to take it, or requests flexible work arrangements.

If you'd like assistance in relation to the issues raised please do contact Carrie Beaumont at cbeaumont@ortolan.com