Statutory Family Leave: EAT Clarifies Protection for
Employees Who Seek to Take Leave
A recent decision by the Employment Appeal Tribunal (EAT) has reinforced the legal protections available to employees who seek to take statutory family-related leave, such as parental leave. The ruling provides important guidance for employers about how informal leave discussions should be handled, and underlines the risks of dismissing employees who express a desire to exercise statutory rights—even if they haven’t followed formal notification procedures.
This is especially relevant given the new family leave entitlements coming into effect in April 2024, including carer’s leave and updates to paternity and flexible working rights.
The Case: Informal Discussions Still Count
The case concerned an employee who had informally discussed taking statutory parental leave with his manager and HR. Although he had not submitted a formal written request, he had clearly expressed an intention to take time off to care for his children, one of whom was disabled.
Shortly after these discussions, the employee was dismissed—purportedly for redundancy. However, he claimed the real reason for his dismissal was his request for parental leave, and he brought a claim for automatic unfair dismissal.
Because he had less than two years’ service, he was not eligible to bring a standard unfair dismissal claim. His case hinged on whether “seeking” to take parental leave without formally requesting it triggered statutory protection.
The employer argued that without a formal request, the employee could not rely on legal protections. But the EAT disagreed.
The EAT’s Ruling: A Common-Sense, Purposeful Approach
The EAT reaffirmed that employment law must be interpreted broadly and purposively. It ruled that:
An employee doesn’t need to follow the formal statutory process to benefit from protection against detriment or dismissal.
If an employee informs their employer of an intention to take statutory leave—even informally—this may still amount to “seeking” to take leave under the legislation.
It is for the tribunal to assess whether, on the facts, the employee’s actions were sufficient to trigger statutory protection.
The EAT warned that adopting a narrow, formalistic view would allow employers to dismiss staff before they submit a formal request, thereby undermining the purpose of the legislation.
Action Points for Employers
Educate managers: Train line managers to understand and respond appropriately to informal conversations about family leave.
Review your policies: Ensure your policies on parental leave, paternity leave, carer’s leave, and flexible working are legally compliant and accessible.
Document discussions: Keep clear records of any discussions around statutory leave entitlements to help manage risk.
- Encourage a supportive culture: Avoid treating requests for family leave as an administrative burden. Instead, foster a culture where employees feel supported.
FAQs: Family Leave & Informal Requests
Q: Does an employee have to submit a formal request to trigger legal protection?
A: No. The EAT confirmed that even informal conversations expressing an intention to take statutory leave may be enough to trigger protection from dismissal or detriment.
Q: Can we dismiss someone during redundancy if they’ve asked about family leave?
A: You can still conduct fair redundancies, but if the dismissal appears linked to their request for leave, it could be deemed automatically unfair.
Q: What if an employee hasn’t met the minimum service requirement for unfair dismissal?
A: Statutory protections for certain types of leave (e.g. parental, maternity, paternity) apply from day one. Length of service is not required for automatic unfair dismissal claims in this context.
Q: Is this relevant even if the employee doesn’t have children with a disability?
A: Yes. While disability may strengthen a discrimination claim, the basic protection applies to all qualifying parental leave requests, regardless of the child’s condition.
Q: What’s changing in April 2024?
A: New legislation introduces:
Statutory carer’s leave
More flexible paternity leave rules
A day-one right to request flexible working
Employers should prepare now to update policies and respond to more diverse leave requests.
Final Thoughts
This EAT ruling reinforces a fundamental principle: employees must not be penalised for expressing an intention to use their lawful rights. It also sends a message to employers—don’t ignore informal conversations.
With more employees expected to exercise family-related leave rights in 2024, now is the time to update your policies, train your teams, and ensure that your approach to statutory leave is both compliant and compassionate.
If you need help reviewing your policies or delivering training to line managers on handling leave requests appropriately, our employment law team is here to help.