South Central Trains Ltd v Rodway

This appeal concerned the interpretation of the default provisions for parental leave in the Maternity and Parental Leave etc Regulations 1999, in particular paragraph 7 of Schedule 2 and regulation 14(4). The principal question was whether, under the fallback scheme in Schedule 2, parental leave could be taken for periods shorter than a week's leave (for example a single day) with such short periods being aggregated for the purpose of calculating statutory entitlement, or whether the minimum block of leave under the default provisions was a week (or multiples of a week), except where the child is entitled to disability living allowance.

The Court of Appeal held that Schedule 2 paragraph 7 establishes a minimum period of a week's leave (or multiples of a week) under the default regime and that the phrase "in a period" in paragraph 7 should be read as referring to the length of any occasion of leave. Regulation 14(4) was held to govern aggregation where parties have agreed that leave may be taken in shorter periods but does not alter the meaning of paragraph 7 in the default scheme. The appeal was dismissed.

Background and facts:

• The appellant (employee) had applied on 5 July 2003 for one day's parental leave on 26 July 2003 to care for his two-year-old son. The employer responded on 24 July that the leave could not be granted because the job could not be covered. The employee did not attend work on 26 July and was subsequently disciplined and given a formal warning.
• The employee brought a claim under section 47C of the Employment Rights Act 1996, relying on regulation 19(2)(e) of the 1999 Regulations, alleging detriment for having taken or sought to take parental leave. The Employment Tribunal found for the employee and awarded £750. The Employment Appeal Tribunal (majority) reversed that decision. The case was then before the Court of Appeal on appeal from the EAT.

Nature of the claim and relief sought:

• The employee sought a remedy for unlawful detriment under section 47C ERA 1996 on the basis that he was entitled to take one day's parental leave under the default provisions of the 1999 Regulations.

Issues framed by the court:

• Whether under the default provisions in Schedule 2 to the 1999 Regulations an employee may take parental leave for a period shorter than the week's leave defined by regulation 14 (for example a single day), with that shorter period counting as a week's entitlement for calculation purposes; or whether paragraph 7 of Schedule 2 requires parental leave to be taken in minimum blocks of a week (or multiples) except for disabled children.
• What role, if any, regulation 14(4) and the European Council Directive 96/34 and its objectives play in interpreting Schedule 2 paragraph 7.

Court's reasoning and decision:

• The Court examined the statutory text, noting that regulation 14 defines what constitutes a week's leave for different working patterns and that regulation 14(4) provides for aggregation of periods shorter than a week's leave where shorter periods are agreed. The court observed that regulation 16 applies Schedule 2 as the default where no contractual or collective agreement exists.
• The Court accepted the EAT's emphasis on the heading to paragraph 7, "Minimum periods of leave", and concluded that the wording "may not take parental leave in a period other than the period which constitutes a week's leave" should be read as prescribing the minimum duration of any occasion of leave in the default regime. Regulation 14(4) was seen as addressing aggregation in cases where shorter periods have been agreed between employer and employee, not as changing the default minimum in Schedule 2.
• The Court considered, but found little assistance in, the Directive and its recitals beyond recognising the balance to be struck between employers and workers and that member states have discretion on detailed rules. The Court also accepted that, if paragraph 7 were ambiguous, the Pepper v Hart principles would permit resort to ministerial statements, which support the view that the fallback scheme operates in blocks or multiples of a week except for disabled children. On the textual and contextual analysis the court found no ambiguity requiring recourse to Hansard.
• Accordingly, the Court dismissed the appeal and upheld the EAT's construction that, under the default scheme, parental leave must be taken in minimum periods of a week (or multiples), except where the child is entitled to disability living allowance.

Appeal dismissed. The Court held that Schedule 2 paragraph 7 to the Maternity and Parental Leave etc Regulations 1999 must be read as prescribing a minimum period of one week's parental leave (or multiples of a week) under the default regime; regulation 14(4) deals with aggregation where shorter periods are agreed and does not alter the default minimum. The court accepted that ministerial statements in Hansard would confirm that construction if any ambiguity existed, but found the text and heading sufficient.

Appeal to the Court of Appeal from the Employment Appeal Tribunal (majority decision presided over by His Honour Judge Birtles) which had reversed the Employment Tribunal. The Employment Tribunal had originally found for the claimant and awarded £750; the EAT reversed that decision and the Court of Appeal dismissed the appeal from the EAT.