PATERNITY LEAVE - 27.11.2008

Dismissed on paternity leave?

Meaning of automatically unfair

Under the Employment Rights Act 1996 it’s automatically unfair to dismiss an employee for a “reason related”to statutory paternity leave. “Related” means connected to the employee either making a request to take, or actually being on paternity leave. So how broad or narrow is the meaning of the word “connected”? For example, can the slightest connection be enough to make a dismissal automatically unfair, even if it doesn’t really have any direct link with paternity leave?

Argument caused dismissal

In the case of Atkins v Coyle Personnel plc 2008 the Employment Appeal Tribunal dealt with this very issue. Whilst on paternity leave Atkins (A) had a heated argument over the phone with his manager, Mr Edwards. The disagreement concerned what each believed to be the other’s unreasonableness over contact arrangements with an important client whilst A was off. Mr Edwards ended their conversation by saying saying “you’re f**** sacked” - never a reasonable way for an employer to handle a disagreement.A then brought a claim for unfair dismissal as a result of him being on paternity leave.

What does it mean?

A tried to argue that “related to”means “associated with”. However, the EAT said that although this may be the dictionary definition, under the Paternity and Adoption Leave Regulations2002,it had to be the paternity leave itself that was the cause of the dismissal. Therefore, the EAT rejected A’s claim that he had been dismissed due to his paternity leave and instead determined that the real reason for his dismissal was his manager’s annoyance with his attitude.

Narrow interpretation. This decision is good news for employers who can take comfort in the EAT’s narrow definition. It means that where there are other factors that would have caused the dismissal, e.g. insubordination, dishonesty or failure to co-operate with the employer, any dismissal whilst an employee is on paternity leave won’t be automatically unfair.

Words of warning

However, if certain factors hadn’t existed, the outcome could have been quite different. Firstly, A did not have the required twelve months’ service to bring an ordinary unfair dismissal claim (different to an automatic unfair dismissal). Furthermore, his employer didn’t follow the proper statutory disciplinary and dismissal procedures. Had they done so it would have led to an automatic finding of unfair dismissal (provided A met the requirements). Finally, the arrangements relating to the paternity leave were a mess.

Tip 1. Exercise caution when dismissing an employee on paternity leave as there may be enough of a link between them taking the leave and the dismissal for it to be automatically unfair. But this shouldn’t stop you dismissing where there’s a genuine reason unrelated to paternity leave.

Tip 2. Disputes can be avoided by having a paternity leave policy.

For a free sample paternity leave policy, visit http://personnel.indicator.co.uk (PS 10.21.03).