South Central Trains Ltd v Rodway

Under the default parental-leave scheme, an employee may take leave only in a period equal to a week’s leave, or a multiple of it, unless the child is entitled to disability living allowance. The rule concerns the minimum period actually taken, not the exhaustion or aggregation of total entitlement. Regulation 14(4) deals with aggregation of shorter periods where such leave is permitted under an agreed arrangement; it does not alter Schedule 2 paragraph 7. The European framework leaves detailed rules to Member States and recognises the need to balance employees’ caring responsibilities with employers’ requirements. The wording was not ambiguous. Even if it had been, ministerial statements admissible under Pepper v Hart would have confirmed the same construction.

Christopher Rodway, an employee of South Central Trains Ltd, sought to take one day’s parental leave to care for his young son. The employer refused the request because the work could not be covered. Mr Rodway was absent and received a formal warning, then brought a detriment claim under section 47C of the Employment Rights Act 1996.

The Employment Tribunal allowed the claim and awarded £750. A majority of the Employment Appeal Tribunal reversed that decision. The issue before the Court of Appeal was whether the default provisions permitted parental leave to be taken for a single day, or only in blocks or multiples of one week.

1. Appeal dismissed. Lord Justice Keene delivered the first judgment. Lord Justices Latham and Tuckey agreed. The order included costs summarily assessed at £12,000, inclusive of VAT.
2. The default provisions in Schedule 2 to the Maternity and Parental Leave etc Regulations 1999 required parental leave to be taken in a period constituting a week’s leave for the employee, or a multiple of that period, except where the child was entitled to disability living allowance.
3. The heading to paragraph 7, Minimum periods of leave, supported that construction. The words in a period referred to the length of time actually taken as leave. The word take could not artificially be read as meaning aggregate or use entitlement. The default scheme therefore did not permit a single day’s parental leave.
4. Regulation 14(4) did contemplate aggregation of shorter periods. However, it operated where shorter periods were permitted by a contractual, collective or workforce arrangement, and dealt with their treatment against the maximum entitlement. It was not confined to parents of disabled children, as the EAT had held, but it did not change the meaning of paragraph 7 in the default scheme.
5. The European Directive and framework agreement did not require single-day leave. They left detailed rules to Member States and recognised a balance between employees’ caring responsibilities and employers’ requirements. The reference in clause 2(3)(e) to postponement did not prevent an employer refusing a request for leave outside the employee’s legal entitlement.
6. The wording was not ambiguous. If it had been, the criteria in Pepper v Hart [1993] AC 593 would have permitted reliance on the clear ministerial statements in Hansard, which confirmed the same interpretation.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 443, the appeal was dismissed with costs.
• Employment Appeal Tribunal: A majority reversed the Employment Tribunal’s decision.
• Employment Tribunal: The complaint succeeded and £750 compensation was awarded.