SOUTH CENTRAL TRAINS LTD v MR C E RODWAY [2004] UKEAT 0099_04_0308

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0099_04_0308

Case No Appeal No. UKEAT/0099/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

SOUTH CENTRAL TRAINS LTDAPPELLANT

MR C E RODWAYRESPONDENT

Before

His Honour Judge Birtles Mr D Chadwick Mr C Edwards

Date 3 August 2004

[1]APPEARANCES For the Appellant MR JAMES TODD (of Counsel) Instructed by: Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TW For the Respondent MR DAMIAN BROWN (of Counsel) Instructed by: Messrs Edwards Duthie Solicitors 292-294 Plashet Grove East Ham London E6 1EE SUMMARY Maternity Rights and Parental Leave Detriment Issue as to whether one day's parental leave can be taken at a time (instead of blocks of one week) and whether disciplinary proceedings for unauthorised absence can be subjecting to a detriment within s47C of the Employment Rights Act 1996 where there is no (or disputed) entitlement to such leave and Regulation 19 of the Maternity and Parental Leave Regulations 1999. HIS HONOUR JUDGE BIRTLES Introduction This is an appeal from the Decision of an Employment Tribunal sitting at London South on 27 October 2003. The Decision was entered in the Register and sent to the parties on 20 November 2003. The Chairman was Mr M Zuke and the Members were Mr M Ali and Ms L Myland.

[2]The material facts The Employment Tribunal found the following facts:

"4. The Applicant has been employed by the Respondent since 1984. He is currently a train guard conductor. The Applicant and his former partner have a two year old son who lives with the Applicant's ex-partner. In or about the middle of June 2003 the Applicant's ex-partner informed him that she needed to visit her disabled sister on Saturday 26 July and it would therefore be necessary for the Applicant to look after his son on that day. The Applicant applied for annual leave on 26 July. He was told that it might be possible to grant him leave but it could not be guaranteed. Because of that uncertainty on 5 July he made a written application for parental leave on 26 July for the purpose of caring for his son. He received no written response from the Respondent to that request. 5. On Thursday 24 July the Applicant was told that he could not take 26 July as parental leave because his job could not be covered. He enquired about the position again on 25 July and was told that a manager would speak to him, but he received no response. On 24 and 25 July the Applicant made clear to his managers that he would not attend work on 26 July because he had to look after his son. 6. The Applicant did not come to work on 26 July and spent the day caring for his son. On 8 August he received a document called Form 1 charging him with the disciplinary offence of being absent without permission. The sanctions available to the Respondent pursuant to the Form 1 disciplinary procedure range from a reprimand to dismissal. The Applicant attended a disciplinary hearing on 24 September accompanied by his trade union representative. The hearing lasted approximately 5 hours. In the course of the hearing the Respondent's managers made a number of allegations that are longer relied upon by the Respondent. For example it was suggested that the Applicant had never submitted an application for parental leave. It was also contended that the Respondent had entered into a collective agreement about parental leave with the Applicant's trade union the RMT. That contention is no longer relied upon by the Respondent. 7. The manager conducting the disciplinary hearing decided to withdraw the Form 1 charge but to give the Applicant a warning about his non-attendance for duty on 26 July. On 29 September the manager sent the Applicant a letter confirming that decision. The letter included the following sentence:- "

At the hearing you were given a warning regarding your non-attendance for duty on Saturday 26 July 2003 and were advised on the company's policy regarding parental leave". 8. The Applicant did not receive any pay for 26 July because of his absence. The Applicant referred to the sum of £45 which was part of his pay. He agreed that he had not had £45 deducted from his pay in addition to the non-payment of wages for 26 July. 9. The Applicant has never previously been charged with any disciplinary offence, and the warning confirmed in writing on 29 September is the first disciplinary action that has ever been taken against him."

[3]The relevant law "(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason. (2) A prescribed reason is one which is prescribed by regulations made by the Secretary of State and which relates to -(a) pregnancy, childbirth or maternity,

(b) ordinary, compulsory or additional maternity leave, (ba) ordinary or additional adoption leave,

(d) time off under section 57A" (3) A reason prescribed under this section in relation to parental leave may relate to action which an employee takes, agrees to take or refuses to take under or in respect of a collective or workforce agreement. (4) Regulations under this section may make different provision for different cases or circumstances." 48 Complaints to employment tribunals (1) An employee may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 44, 45, [46, 47] 47A or 47C. Remedies (1) Where an employment tribunal finds a complaint under section 48 well-founded, the tribunal- (a) shall make a declaration to that effect, and (b) may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates. (2) Subject to subsections (5A) and (6)The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to- (a) the infringement to which the complaint relates, and (b) any loss which is attributable to the act, or failure to act, which infringed the complainant's right. (3) The loss shall be taken to include- (a) any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates, and (b) loss of any benefit which he might reasonably be expected to have had but for that act or failure to act. (4) In ascertaining the loss the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland. (5) Where the tribunal finds that the act, or failure to act, to which the complaint relates was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding. The Maternity and Parental Leave etc Regulations 1999 Interpretation 2. (1) In these Regulations - "parental leave" means leave under regulation 13(1); Entitlement to parental leave 13 (1) An employee who - (a) has been continuously employed for a period of not less than a year; and (b) has, or expects to have, responsibility for a child, is entitled, in accordance with these Regulations, to be absent from work on parental leave for the purpose of caring for that child. (2) An employee has responsibility for a child, for the purposes of paragraph (1), if - (a) he has parental responsibility or, in Scotland, parental responsibilities for the child; or (b) he has been registered as the child's father under any provision of section 10(1) or 10A(I) of the Births and Deaths Registration Act 1953 [1] or of section 18(1) or (2) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965[8]. (3) An employee is not entitled to parental leave in respect of a child born before 15th December 1999, except for a child who is adopted by the employee, or placed with the employee for adoption by him, on or after that date. Extent of entitlement 14. (1) An employee is entitled to thirteen weeks' leave in respect of any individual child. (2) Where the period for which an employee is normally required, under his contract of employment, to work in the course of a week does not vary, a week's leave for the employee is a period of absence from work which is equal in duration to the period for which he is normally required to work. (3) Where the period for which an employee is normally required, under his contract of employment, to work in the course of a week varies from week to week or over a longer period, or where he is normally required under his contract to work in some weeks but not in others, a week's leave for the employee is a period of absence from work which is equal in duration to the period calculated by dividing the total of the periods for which he is normally required to work in a year by 52. (4) Where an employee takes leave in periods shorter than the period which constitutes, for him, a week's leave under whichever of paragraphs (2) and (3) is applicable in his case, he completes a week's leave when the aggregate of the periods of leave he has taken equals the period constituting a week's leave for him under the applicable paragraph. Default provisions in respect of parental leave 16. The provisions set out in Schedule 2 apply in relation to parental leave in the case of an employee whose contract of employment does not include provision which - (a) confers an entitlement to absence from work for the purpose of caring for a child, and (b) incorporates or operates by reference to all or part of a collective agreement or workforce agreement. Minimum periods of leave 7 An employee may 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 respect of whom leave is taken is entitled to a disability living allowance."

[4]The Employment Tribunal's Conclusions The Employment Tribunal reached the following conclusions:

"26. The Tribunal agreed with the Applicant that charging him with a disciplinary offence, requiring him to attend a disciplinary hearing, and giving him a warning all constituted a detriment. In particular, the giving of a warning confirmed in writing constituted a detriment. 27. We next considered whether the Applicant was subjected to that detriment for a prescribed reason. The reason that the Applicant was subjected to the detriment was because of a disagreement about his entitlement to parental leave. That reason related to parental leave. We therefore concluded that the detriment was done for a prescribed reason. We concluded that the Applicant's complaint was well-founded. 28. In arriving at that conclusion it is apparent that we did not accept Mr Todd's submission that because as he submitted, the Applicant was not entitled to parental leave on 26 July, the detriment could not have been for a reason which related to parental leave. In case we are mistaken in our view, we went on to consider whether the Applicant had in fact been entitled to parental leave on 26 July. 29. In our view we must adopt a purposive approach to the Regulations. The purpose of the Council Directive is to allow for "better organisation of working hours and greater flexibility, and to allow for the "reconciliation of work and family life"

. Parents should be allowed flexibility to take parental leave for the purpose of caring for their children. 30. The interpretation of the Regulations contended for by the Respondent substantially undermines that purpose. There will be countless occasions when a parent does not need to take an entire week's parental leave. That interpretation so undermines the Regulations because it would mean that a parent who wanted to take one day's parental leave would have to apply for one week's parental leave. Being forced to apply for one week's unpaid leave would act as a powerful disincentive to a parent who only wanted to take one day's unpaid leave. The undermining of the Regulations goes even further because if the Respondent is correct, the parent who was prepared to take a whole week's unpaid leave could be denied on the grounds that they only needed one day's parental leave, and as the remainder of the week would not be for the purpose of parental leave they were not entitled to take one week's parental leave. 31. Adopting a purposive approach to the Regu1ations in our view a proper construction of paragraph 7 of schedule 2 is that the word "take" means "use their entitlement" to, parental leave. In other words any absence of less than a week is to be treated as exhausting one week's entitlement to parental leave. We concluded that the Applicant was entitled to take a day's parental leave on 26 July. 32. We are unable to agree with the Applicant that his absence on 26 July fell within Section 57A, because it did not arise from the unexpected disruption of arrangements for the care of his son. The Applicant had known about the disruption to those arrangements for some six weeks before the disruption occurred. 33. Furthermore, in our view the detriment to which the Applicant was subjected was not for a reason which related to time off under Section 57A. The Applicant had not at the time asserted that he had been entitled to time off under Section 57A. The detriment to which the Applicant was subjected did not therefore relate to time off under Section 57A but to the dispute about parental leave. 34. After the Chairman informed the parties of the decision of the Tribunal he invited representations on the amount of compensation that the Applicant should be awarded, if any. Having considered those representations the Tribunal decided to award the Applicant compensation in the sum of £750. In arriving at that decision we had regard to the injury to the Applicant's feelings occasioned by the detriment to which he was subjected. We took into account the fact that this was the first occasion in almost 20 years employment that the Applicant had been subjected to any disciplinary process. Compensation can include compensation for injury to feelings - see Cleveland Ambulance NHS Trust v Blane

[1997] IRLR 332

. 35. If the Applicant had been granted one day's parental leave it would have been unpaid. The Applicant did not produce any evidence that he had sustained any loss of pay apart from the fact he was not paid for 26 July. We concluded that the Applicant did not suffer any actual financial loss." The Notice of Appeal

[5]Although the Notice of Appeal is couched in different ways, this appeal revolves around a single issue only; do the Maternity and Parental Leave etc Regulations 1999 ("the 1999 Regulations") permit the Respondent to take parental leave for one or more days or must he take such parental leave only in blocks of one week or more at a time?

[6]Mr Todd made three submissions. First, he said that we should adopt a literal construction to the 1999 Regulations and he made a submission on construction to us. In addition he referred us to the relevant passages in Harvey on Industrial Relations and Employment Law, Division J8(1)(h). Paragraph 710.1; Tolleys Employment Vol 1 Section M2037 at M20/35 and the Department of Trade and Industry Guidance on Parental Leave. Second, he submitted that it was not necessary to adopt a purposive construction in this case because it was clear that the 1999 Regulations, properly implemented Council Directive 3 June 1996 on the Framework Agreement on Parental Leave (96/34 EC) as extended by Council Directive 97/75/EC. It was not therefore necessary to apply the decision of the House of Lords in Litster and Others -v- Forth Dry Dock &Engineering Co Ltd (In Receivership) and Another

[1990] 1 AC 546

. Third, Mr Todd submitted that the Employment Tribunal had approached the question of detriment in paragraph 27 of its Decision in the wrong way and failed to apply London Borough of Harrow -v- Knight

[2003] IRLR 140

. He said that "parental leave" means parental leave as allowed by law, or is permitted by law or lawful parental leave. The Respondent was not therefore to be subjected to a detriment for a prescribed reason under section 47C of the Employment Rights Act 1996 and Regulation 19 of the 1999 Regulations.

[7]Mr Brown submitted that this case revolved around one issue and one issue only, namely the one we have identified above. He submitted that the Decision of the Employment Tribunal was clear and referred us in particular to the Directive. Mr Brown made submissions on the proper construction of the 1999 Regulations.

[8]In the course of oral argument, we asked Counsel if there was any assistance in any Parliamentary debate on the introduction of the Regulations. Subsequently, Mr Todd sent us a copy of Hansard for 9 December 1999 which reported the very short speech by Lord Sainsbury of Turville, which introduced the 1999 Regulations in the House of Lords. We have not received any comments from Mr Brown on that passage and we ignore what Lord Sainsbury of Turville said in reaching our conclusions. Employment Appeal Tribunal Decision

[9]This Employment Appeal Tribunal decision is a majority decision by His Honour Judge Birtles and Mr Chadwick.

[10]We have carefully considered the whole of the Framework Agreement on Parental Leave (96/34/EC). We do not find in its language any assistance as to interpretation of the precise language with which we are concerned in the 1999 Regulations, and in particular Schedule 2 paragraph 7. As one would expect, the Framework Agreements requires Member States to make detailed implementation of the Framework Agreement: see especially Clause 2. Parental Leave, paragraph 3.

[11]We turn to the Regulations themselves. The phrase "parental leave" is defined by Regulation 2(1) as meaning "leave under regulation 13(1)". Regulation 13(1) justifies the entitlement to parental leave. There is no dispute in this case that the Respondent did so qualify. Regulation 14 deals with the extent of that entitlement. Regulation 14(1) provides the maximum amount of thirteen weeks leave in respect of any individual child. Regulation 14(2) deals with the normal working week and Regulation 14(3) deals with the regular working week. We agree with Mr Todd that Regulation 14(4) is for the cases of employees who have a disabled child: see Schedule 2 paragraph 7. Regulation 15 makes it clear that the entitlement to parental leave, except in the case of a disabled child, ceases at the child's fifth birthday.

[12]Regulation 16 deals with default provisions, i.e. where the employer and the employee have not made specific provision in the contract of employment for parental leave. Regulation 16 applied in this case because there was no such agreement between the Appellant and the Respondent. There was nothing in the Respondent's contract of employment or any collective agreement which referred to parental leave. We therefore turn to Schedule 2 of the 1999 Regulations which sets out in detail the way the default provisions operate. No issue arises here in respect of paragraphs 1 - 6. There is no dispute that the Respondent correctly followed the required procedure to request parental leave. However, what he wanted was one day's parental leave and no more.

[13]The critical provision is paragraph 7 of Schedule 2. It says this:

"7. An employee may not take parental leave in a period other than a 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 respect of whom leave is taken is entitled to a Disability Living Allowance"

In our judgment the meaning of Schedule 2 paragraph 7 is clear. First, we note that the heading to paragraph 7 is "Minimum Periods of Leave". In our judgment the phrase "in a period" in the first line of paragraph 7 means "for a period" not "during a period". Furthermore the reference back to Regulation 14 which is to be read in the way we have explained it. The minimum period of leave for this Respondent was therefore the period which constitutes a week's leave for him under that Regulation. In this Respondent's case that was under Regulation 14(3) (or possibly Regulation 14(2). The Respondent's child was not disabled and therefore Regulation 14(4) does not apply here so as to permit him to take advantage of Regulation 14(4).

[14]It follows that the Employment Tribunal made an error of law in construing Schedule 2 paragraph 7 as permitting the Respondent to take parental leave for one day only, i.e. 26 July 2003: Decision paragraphs 29 - 31.

[15]Furthermore, the Employment Tribunal made an error of law in deciding that because there was a disagreement between the Appellant and the Respondent as to whether or not the Respondent was entitled to one day's parental leave that disagreement was a "reason related to parental leave": Decision paragraph 27-28. In our judgment there was a failure to apply the reasoning in London Borough of Harrow -v- Knight

[2003] IRLR 140

because the "detriment" required by section 47C of the Employment Rights Act 1996 was absent. It was not sufficient for there to be a dispute about the extent of the entitlement. The requirement of section 47C(1) of the 1996 Act requires there to be a "deliberate failure to act by his employer done for a prescribed reason". "Prescribed reason" has to be one which is prescribed by Regulations made by the Secretary of State and in this case related to parental leave: section 47C(2) 1996 Act. Since the Respondent could not lawfully take a day off for parental leave, but had to take five days, the subsequent disciplinary action taken against him by the Appellant was lawful. There was no detriment within the meaning of section 47C and Regulation 19 of the 1999 Regulations. Conclusion

[16]Mr Edwards dissents from this majority decision and would allow the appeal, preferring the purposive approach adopted by the Employment Tribunal outlined in paragraphs 26 - 33 of its Decision, which are set out in paragraph 4 of this judgment.

[17]For these reasons the majority allow this appeal. It is not necessary to remit this case to the same or a different Employment Tribunal because the construction of the 1999 Regulations is a matter of law and we are therefore able to substitute our decision for that of the Employment Tribunal.

[18]At the conclusion of oral submissions, both parties asked for permission to appeal to the Court of Appeal, in the event that they were unsuccessful. We indicated that we would grant such permission, and in the circumstances, we grant the Respondent permission to appeal to the Court of Appeal