Veitch Penny LLP - Exeter | Crediton, Devon

Case

Rodway v South Central Trains
Employment Appeal Tribunal - (3 August 2004)

Issues

(1) Parental Leave
(2) Scope of entitlement
(3) Maternity and Parental Leave etc Regulations 1999

Facts

The Maternity and Parental Leave etc Regulations 1999 state “An employee may not take parental leave in a period other than the period which constitutes a week’s leave for him under Regulation 14 or a multiple of that period, except in a case where the child in response of whom leave is taken is entitled to a disability living allowance”. Section 47C of the Employment Rights Act 1996 provides protection for employees who are subjected to a detriment by exercising their right to take parental leave.

Mr Rodway had been employed as a train guard conductor since 1984. Mr Rodway’s son lived with his mother. In this case, Mr Rodway sought to take a day (26th July) off work to look after his son. He initially applied for annual leave, but because the leave could not be guaranteed, he made a written application for parental leave. He received no response to that request. On 24th July, he was told that he could not take the day off as parental leave because his job could not be covered. He failed to attend work on the day in question, for which he received a warning for non-attendance.

Mr Rodway complained to an Employment Tribunal alleging that he had been subjected to a detriment by taking or seeking to take parental leave.

The original Employment Tribunal found that the definition of parental leave meant that employees could take single days of leave. If they did so any period of less than a week would be treated as exhausting one full week’s entitlement of parental leave. Consequently as Mr Rodway had been disciplined for taking the day off he was entitled to take as parental leave, the written warning he had received constituted a detriment.

The employer appealed the decision.

Decision

The appeal would be allowed.

The Employment Appeal Tribunal (EAT) confirmed that the regulations did not permit parental leave to be taken for one day only. In line with Regulation 14 the minimum period of leave an employee could take was the period that constituted a week’s leave for him by reference to their working hours.

It was also found that a dispute as to the extent of the employee’s entitlement to parental leave was not sufficient to constitute a detriment. There needed to be a deliberate failure to act on the part of an employer. As in this case Mr Rodway could not lawfully take a day off for parental leave the subsequent disciplinary action was lawful.

Comments

This decision confirms that parental leave may only be taken in blocks of one week although the EAT has given permission for Mr Rodway to appeal to the Court of Appeal.