REWARD
Protection from detriment for seeking parental leave does not require formal notice Employees are protected from suffering a detriment because they have ‘sought’ to take parental leave. The Employment Appeal Tribunal (EAT) had to consider, in the case of Hilton Foods Solutions Ltd v Wright, whether informal enquiries about taking parental leave were enough to gain this protection. The claimant was employed as a logistics / supply chain manager, working for the respondent for a little over a year before being dismissed on grounds of redundancy. Prior to his dismissal, the claimant had informally discussed taking unpaid parental leave to look after his disabled son with his colleagues, including the human resources (HR) department, his line manager and the respondent’s managing director. While speaking to the managing director of his intentions, the claimant was reportedly sworn at and told that he was expected to be in the office “Monday to Friday, 8am-5pm with no exceptions”. This was reported to HR, but the behaviour was dismissed as typical for the managing director. In the end, the claimant didn’t at any time make a formal request to take parental leave. Following the dismissal, the claimant brought a claim for automatic unfair dismissal on the basis that the real reason for the dismissal was his intention to request parental leave, and not redundancy as the respondent had purported. At a preliminary hearing, the respondent applied to strike out the claim on the basis that it had no reasonable prospect of success. This argument before the ET was based on the fact a formal request for parental leave was never in fact made, despite the claimant acknowledging that this was a requirement to take the leave. As no formal request had materialised, the claimant had not, the respondent argued, as a matter of law, sought to take parental leave, which is necessary for the legal protection to apply. This was rejected by the ET. It was held that the claimant had made informal enquiries regarding taking parental leave and made it clear on several occasions that he intended to take it. This was sufficient for the ET to find that the claimant had ‘sought’ to take parental leave. This was appealed by the respondent on the basis that the legislation required a
written application to be made for it to be said that an employee has sought to take parental leave. “According to the Employment Appeal Tribunal, there’s no absolute requirement under the legislation for an employee to give notice for them to have ‘sought’ to take parental leave” According to the EAT, there’s no absolute requirement under the legislation for an employee to give notice for them to have ‘sought’ to take parental leave. The word ‘sought’ is an ordinary English word and in this regard, it should be given its ordinary meaning. Whether or not an employee had sought to take leave under the legislation was therefore a question of fact. Had it been intended otherwise, the legislation would specify that the giving of notice was required for the protection against dismissal to apply, rather than using ‘sought’ instead. Changing employee terms must be for a business need and not just a want The case of Mrs A Perkins v Marston (Holdings) Ltd is a useful reminder that if an employer is considering making any changes to terms and conditions of employment, it needs to be for a justifiable business need. The claimant, a mother of two children, was told that because of a restructure she would now need to travel significant distances to attend face-to-face meetings. There was to be no reduction in the work to be completed by her, but rather a change to the types of tasks that she was required to undertake. The claimant explained that while she could travel reasonable distances, she would be unable to find childcare for extended periods of time that would allow her to leave early in the morning and return late in the evening. The claimant was informed during the consultation process that her options
were to either have the change enforced upon her by way of ‘fire and rehire’ or to be made redundant. The claimant was told that because of the seniority of the role, she was now expected to travel further because it was the culture within the business and because it would break down barriers. At the second consultation meeting, the respondent was unable, however, to provide any specific examples of barriers that were created by the claimant’s lack of travel; instead it was reiterated that it was the company’s culture to travel to meetings. The claimant was provided with notice of redundancy. A grievance and appeal were both lodged by the claimant, but they were both unsubstantiated. The claimant brought claims of indirect sex discrimination and unfair dismissal. The ET found that the requirement to travel significant distances would put women, as primary carers, at a particular disadvantage. While the respondent argued that the requirement could be justified because of business efficiency and staff morale, this was rejected by the ET. There was no evidence that restricting travel for the claimant would be detrimental to the running of the respondent’s business. The claimant was, therefore, successful in the indirect sex discrimination claim because the ET found that it was not proportionate to ask her to travel significant distances to achieve the goals of business efficiency and staff morale. The ET said: “Instead, it appears that this was the culture within the respondent and something that the respondent wanted but not what was needed.” The claimant argued that there had been no reduction in the work she performed and that it was not a true redundancy situation. The ET agreed as the definition of ‘redundancy’ was not met. The respondent didn’t cease to carry on the business for the purposes of which the claimant was employed or in the place that the claimant was employed. The claimant was dismissed because she wouldn’t travel significant distances following the respondent’s reorganisation. The ET found that the claimant was, therefore, unfairly dismissed because the business hadn’t demonstrated a fair reason for the dismissal or shown that there was sufficient reason to enforce the need for significant travel. n
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| Professional in Payroll, Pensions and Reward |
Issue 101 | June 2024
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