Where an employee is dismissed for asserting certain statutory rights, the dismissal will be ‘automatically unfair’, exposing the employer to the risk of an employment tribunal claim. Automatically unfair reasons for dismissals include dismissals connected with pregnancy, childbirth, statutory maternity leave and other types of statutory family leave, including statutory parental leave.
As a recent case illustrates, employees may sometimes ask their employer informally if they can take a period of leave, without following a particular formal process. A recent Employment Appeal Tribunal case illustrates this risk. In this case, an employment tribunal ruled that an employee’s dismissal purportedly due to redundancy was automatically unfair where the true reason for his dismissal was because he had sought to take statutory parental leave.
Prior to his dismissal he had had informal discussions regarding his intention to take unpaid parental leave. His suggestion that he was eligible to take unpaid parental leave was met with hostility by his employer and he was told he was expected to be in the office full-time. He was then dismissed on the grounds of redundancy.
In an employment tribunal claim, the employee argued that the real reason for his dismissal was that he had sought to take parental leave and not because his role was redundant. His employer applied to the employment tribunal to strike out the employee’s claim on the basis that it had no reasonable prospect of success because their employee had not complied with the statutory notice requirements for requesting parental leave and that, for this reason, it couldn’t be argued he was dismissed because he sought to take parental leave.
However, The Employment Appeal Tribunal, (whose judgments are generally binding in Great Britain), agreed with the employment tribunal that there is no legal requirement that an employee must have given notice to their employer to take parental leave in accordance with the statutory notice requirements in order to establish that the employee had sought to take parental leave. Accordingly, the claim was permitted to proceed to an employment tribunal hearing.
This case confirms that protection against dismissal or detrimental treatment on the grounds that an employee has taken or wishes to take parental leave can arise before an employee formally notifies the employer of their intention to take parental leave.