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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hilton Foods Solutions Ltd v Wright (MATERNAL RIGHTS AND PARENTAL LEAVE) [2024] EAT 28 (07 March 2024) URL: http://www.bailii.org/uk/cases/UKEAT/2024/28.html Cite as: [2024] ICR 862, [2024] WLR(D) 106, [2024] EAT 28 |
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Fetter Lane, London, EC4A 1NL |
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B e f o r e :
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HILTON FOODS SOLUTIONS LTD |
Appellant |
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- and - |
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ANDREW WRIGHT |
Respondent |
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JACK CASTLE and DANIEL HALLSTRÖM
(on behalf of the Free Representation Unit) for the Respondent
Hearing date: 21 February 2024
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Crown Copyright ©
SUMMARY
MATERNITY RIGHTS AND PARENTAL LEAVE
Determining the question of whether an employee has "sought" to take parental leave is a factual determination for appreciation of the Employment Tribunal having considered the relevant evidence. There is not an absolute requirement that the employee must have given notice to take parental leave pursuant to paragraphs 1(b) and 3 of Schedule 2 to MPLR.
HIS HONOUR JUDGE JAMES TAYLER
27. The Claimant was employed by the Respondent from 4 February 2019 until 13 March 2020; his role was Logistics/Supply Chain Manager and he reported to Justin Marshall (JM). PH is the Managing Director.
28. The Respondent prepares and supplies meat products for (amongst others) Tesco supermarket. The Claimant confirmed on cross-examination that although the Respondent prepares food for Tesco the name of the Respondent does not appear on the packaging and therefore anyone buying from Tesco would not know where it came from.
29. The Claimant has two children; his son is disabled; the impairment is autism.
30. The Claimant had informal discussions with various personnel at the Respondent (including his Line Manager and HR) regarding unpaid parental leave; these discussions took place in November 2019, late 2019 and early 2020.
31. On 7 February 2020, Ms Pietruszewka (HR) emailed the Claimant (page 43)
"Subject: Unpaid Parental Leave
"Referring to your question regarding Unpaid Parental Leave – if you wish to apply, you need to write a request to your manager, stating the date you would like o start your parental leave. Please be aware you need to allow 21 days' notice before the start day of your leave. You are entitled to 18 weeks' leave for each child, however you can take up to 4 weeks per year. Please see GOV website with Unpaid Parental Leave Guidance: https://www.gov.uk/parental-leave . Please be aware that if your request is approved you may be asked to take your Unpaid Parental Leave in one week blocks.
If you have any further questions, please do not hesitate to let us know."
On 10 February 2020, the Claimant responded (page 43):
"Thanks for that. I think the only thing different is with a disabled child you can take leave in days rather than weeks according to the policy"
32. The Claimant met with PH on 14 February 2020. The Claimant says he mentioned to PH that he would be seeking parental leave and that PH's response was negative and he told the Claimant that he would need to be in the office "Monday to Friday, 8-5pm with no exceptions". The Claimant says he suggested to PH that he was eligible to take parental leave to which PH replied "so you want to go f*ing legal then". The Respondent denies this and I have made no findings of fact as to what was said as it is not necessary for the purposes of determining the preliminary issues.
33. On 17 February 2020 the Claimant emailed KP (page 45):
"Do you have 15 mins this week we can sit down and have a quick chat about Parental Leave?" The Claimant then met with KP on 18 February 2020. The Claimant says he explained to KP what had happened at the meeting with PH; he says Ms. Pope "dismissed the conversation as "Pete just being Pete".
Again, I have made no findings of fact as to what was said as it is not necessary for the purposes of determining the preliminary issues.
34. The Claimant accepts that he did not at any time make a formal written application for parental leave. He also confirmed on cross-examination that he knew he had to make a formal application in writing. He told me he was in discussions with his ex-wife to work out how it would work.
35. The Respondent had a whistleblowing policy (pages 37-38) which sets out a procedure for raising matters of concern. The Claimant confirmed on crossexamination that he was aware of the policy.
36. The Claimant was dismissed on 13 March 2020 and paid 3 months pay in lieu of his contractual notice. The reason relied on by the Respondent is redundancy.
46. S99 ERA and Reg 20 MPL Regs: Automatic Unfair dismissal (family reasons/parental leave)
46.1 I do not agree with Mr. Bloom that the Claimant's failure to exercise his entitlement to parental leave by complying with the provisions of Schedule 2 of the MPL Regs is fatal to the Claimant's case that he "sought" to take parental leave:
(i) This protection is not analogous to s104 (asserting a statutory right). The wording in s104 is different and requires the employee to show either that he brought proceedings to enforce a relevant statutory right or that he alleged that the employer had infringed a statutory right. The wording in reg 20 on the other hand is wider and requires the employee to show that his dismissal was connected with the fact that he "took or sought to take" parental leave.
(ii) The meaning of "sought to take" was considered in a detriment case, Tavernor v Associated Co-operative Creameries Ltd ET case no. 1902341/00. It was held that in order to be able to claim to have suffered a detriment as a result of taking, or seeking to take, unpaid parental leave, the employee must have made it clear that he or she was relying on the right to take unpaid parental leave. In that case, the claimant had not at any time mentioned parental leave and had been unaware of his parental rights; the claimant had not therefore "sought" to take parental leave. In my view if follows, that had the claimant in that case made it clear he was relying on the right to take unpaid parental leave, he would have overcome the hurdle of showing that he "sought" to take parental leave.
The wording in Reg 19 MPL Regs (protection from detriment) is the same as reg 20 MPL (dismissal) i.e. "took or sought to take" and it is therefore reasonable to apply this analysis to Reg 20.
(iii) In this case, it is agreed that the Claimant made informal enquiries about taking parental leave and made it clear on a number of occasions that this was his intention. It is certainly arguable that he thereby "sought" to take parental leave despite the lack of a written application and due notice.
46.2 The Claimant will also of course need to show a causal connection between dismissal and seeking to take parental leave; that connection must be stronger than merely associated with parental leave but less stringent than the "but for" test (Atkins v Coyle Personnel plc [2008] IRLR 420). It is for tribunals to determine as matter of fact whether there is a connection between the taking of leave and the dismissal and that must be determined by the Tribunal in the light of all the evidence at a final hearing.
46.3 For these reasons, I am not striking out this claim or making a deposit order as I cannot conclude that there are no prospects of success or little reasonable prospects of success.
The Appellant appeals against paragraph 1 of the Judgment not to strike out the Claimant's Claim of Automatic Unfair Dismissal brought pursuant to the provisions of Section 99 Employment Rights Act 1996 and Regulation 20 of the Maternity and Parental Leave Regulations 1999. The Employment Judge erred in law (paragraphs 45 and 46.1 - 46.3 inclusive of the Judgment refers) in concluding that "sought to take Parental Leave" does not require the Claimant to have submitted a written application to take Parental Leave pursuant to the provisions of paragraph 1 (1) (b) Schedule 2 and Paragraph 3 of Schedule 2 of the Maternity and Parental Leave Regulations 1999 ("the Regulations"). The Regulations are prescriptive and require a formal written application as required by Schedule 2 of the Regulations to be made as a requirement to take Parental Leave. An informal discussion as to the possibility of an employee wishing to take Parental Leave does not amount to "seeking to take" Parental Leave as required by Regulation 20 of the Regulations.
Interpretation
2.—(1) In these Regulations …
"parental leave" means leave under regulation 13(1) …
Entitlement to parental leave
13.—(1) An employee who—
(a) has been continuously employed for a period of not less than a year …; and
(b) has, or expects to have, responsibility for a child,
is entitled, in accordance with these Regulations, to be absent from work on parental leave for the purpose of caring for that child.
16. The provisions set out in Schedule 2 apply in relation to parental leave in the case of an employee whose contract of employment does not include a provision which—
(a) confers an entitlement to absence from work for the purpose of caring for a child, and
(b) incorporates or operates by reference to all or part of a collective agreement or workforce agreement.
Contractual rights to maternity or parental leave
21.—(1) This regulation applies where an employee is entitled to—
…(c) parental leave,
(referred to in paragraph (2) as a "statutory right") and also to a right which corresponds to that right and which arises under the employee's contract of employment or otherwise.
(2) In a case where this regulation applies—
(a) the employee may not exercise the statutory right and the corresponding right separately but may, in taking the leave for which the two rights provide, take advantage of whichever right is, in any particular respect, the more favourable, and
(b) the provisions of the 1996 Act and of these Regulations relating to the statutory right apply, subject to any modifications necessary to give effect to any more favourable contractual terms, to the exercise of the composite right described in sub-paragraph (a) as they apply to the exercise of the statutory right.
DEFAULT PROVISIONS IN RESPECT OF PARENTAL LEAVE
Conditions of entitlement
1. An employee may not exercise any entitlement to parental leave unless—
(a) he has complied with any request made by his employer to produce for the employer's inspection evidence of his entitlement, of the kind described in paragraph 2;
(b) he has given his employer notice, in accordance with whichever of paragraphs 3 to 5 is applicable, of the period of leave he proposes to take, and
(c) in a case where paragraph 6 applies, his employer has not postponed the period of leave in accordance with that paragraph.
2. The evidence to be produced for the purpose of paragraph 1(a) is such evidence as may reasonably be required of—
(a) the employee's responsibility or expected responsibility for the child in respect of whom the employee proposes to take parental leave;
(b) the child's date of birth or, in the case of a child who was placed with the employee for adoption, the date on which the placement began, F1...
Notice to be given to employer
3. Except in a case where paragraph 4 or 5 applies, the notice required for the purpose of paragraph 1(b) is notice which—
(a) specifies the dates on which the period of leave is to begin and end, and
(b) is given to the employer at least 21 days before the date on which that period is to begin.
4. Where the employee is the father of the child in respect of whom the leave is to be taken, and the period of leave is to begin on the date on which the child is born, the notice required for the purpose of paragraph 1(b) is notice which—
(a) specifies the expected week of childbirth and the duration of the period of leave, and
(b) is given to the employer at least 21 days before the beginning of the expected week of childbirth.
5. Where the child in respect of whom the leave is to be taken is to be placed with the employee for adoption by him and the leave is to begin on the date of the placement, the notice required for the purpose of paragraph 1(b) is notice which—
(a) specifies the week in which the placement is expected to occur and the duration of the period of leave, and
(b) is given to the employer at least 21 days before the beginning of that week, or, if that is not reasonably practicable, as soon as is reasonably practicable.
Postponement of leave
6. An employer may postpone a period of parental leave where—
(a) neither paragraph 4 nor paragraph 5 applies, and the employee has accordingly given the employer notice in accordance with paragraph 3;
(b) the employer considers that the operation of his business would be unduly disrupted if the employee took leave during the period identified in his notice;
(c) the employer agrees to permit the employee to take a period of leave—
(i) of the same duration as the period identified in the employee's notice,
(ii) beginning on a date determined by the employer after consulting the employee, which is no later than six months after the commencement of that period;
(iii) ending before the date of the child's eighteenth birthday.
(d) the employer gives the employee notice in writing of the postponement which—
(i) states the reason for it, and
(ii) specifies the dates on which the period of leave the employer agrees to permit the employee to take will begin and end, and
(e) that notice is given to the employee not more than seven days after the employee's notice was given to the employer. [emphasis added]
Leave for family reasons.
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—
(c) the reason or principal reason for the dismissal is of a prescribed kind, or
(b) the dismissal takes place in prescribed circumstances.
(2) In this section "prescribed" means prescribed by regulations made by the Secretary of State.
(3) A reason or set of circumstances prescribed under this section must relate to— …
(c) parental leave, … [emphasis added]
Unfair dismissal
20.—(1) An employee who is dismissed is entitled under section 99 of the 1996 Act to be regarded for the purposes of Part X of that Act as unfairly dismissed if—
(a) the reason or principal reason for the dismissal is of a kind specified in paragraph (3), or …
(3) The kinds of reason referred to in paragraphs (1) and (2) are reasons connected with—
…
(e) the fact that she took or sought to take— …
(ii) parental leave, or … [emphasis added]
41 We are satisfied that 'connected with' in reg. 29 means causally connected with rather than some vaguer, less stringent connection, though in a sense the debate is both sterile and semantic as the task of considering the facts and determining whether the reason or principal reason found is such that it is connected with the fact that the employee took or sought to take paternity leave is a factfinding task which, like any finding on causation or otherwise, has to be performed. The legislation must, in our view, be given a wide purposive interpretation and the application of the test must, as on any causation issue, be approached in a pragmatic commonsense fashion on the facts of the individual case.
25. A tribunal asked to determine this issue should ask itself the following questions: (1) did the employee take time off, or seek to take time off, work during her working hours? If so, on how many occasions and when? (2) If so, on each of those occasions did the employee (a) as soon as reasonably practicable inform her employer of the reason for her absence; and (b) inform him how long she expected to be absent; (c) if not, were the circumstances such that she could not inform him of the reason until after she had returned to work? If on the facts the tribunal finds that the employee had not complied with the requirements of section 57A(2) , then the right to take time off work under subsection (1) does not apply. The absences would be unauthorised and the dismissal would not be automatically unfair. Ordinary unfair dismissal might arise for consideration, however, if the employee has the requisite length of service. (3) If the employee had complied with these requirements then the following questions arise: (a) did she take or seek to take time off work in order to take action which was necessary to deal with one or more of the five situations listed at paragraphs (a) to (e) of subsection (1) ? (b) If so, was the amount of time off taken, or sought to be taken, reasonable in the circumstances? (4) If the employee satisfied questions (3)(a) and (b), was the reason, or principal reason, for the employee's dismissal that she had taken or sought to take that time off work? If the tribunal answers that final question in the affirmative, then the employee is entitled to a finding of automatic unfair dismissal.