In a historic challenge brought by the TUC against the Government, the High Court on 23 May 2000 agreed with the TUC, represented by Cherie Booth QC and Thompsons, that the 15 December 1999 cut-off date for parental leave was likely to be unlawful. Nonetheless, the Court decided that for the sake of clarity the question of the legality of the cut-off date should be referred to the European Court of Justice for a final decision, not least so that other Member States could benefit from the guidance of the Court on this important issue.
The case concerns Regulation 13(3) of the Maternity and Parental Leave etc Regulations 1999. The Regulations provide that, subject to satisfying certain criteria, employees should be able to benefit from 13 weeks parental leave away from work to spend time with their children aged under five. Regulation 13(3) then restricts this right to those parents whose children were born on or after the cut off date of 15 December 1999. Therefore parents with children born before that date have no rights under the Regulations, even though their children may be aged under 5. The effect of this is to exclude some 2.7 million parents who would otherwise have been able to benefit from parental leave.
The European Directive which underpins the Regulations and to which the Regulations are meant to give effect includes no such cut-off date. Instead, the Directive simply states that the right to parental leave must be introduced by the UK by 15 December 1999, and that the right "is on the grounds of the birth or adoption of a child". In a tenuous argument, the Government's position in defending the challenge was that these words "on the grounds of the birth or adoption" made the right to parental leave dependant on the child being born or adopted on or after 15 December 1999. The TUC's argument was that the words simply introduced the right to parental leave in relation to children under five, and that right had to be implemented in the UK by 15 December 1999 regardless of whether the child was born on or after that date. In support of their position, the TUC referred to the Reasoned Opinion of the European Commission in similar proceedings being brought directly by the Commission against the Irish Government, who had also implemented the Directive with a cut-off date. In their Reasoned Opinion in the Irish case, the Commission simply conclude that the cut-off date represented a condition not authorised by the Directive. It is therefore unlikely that the European Court of Justice in the TUC case will reach a different conclusion.
The reference to Europe in this case may well take 18 months to 2 years to be concluded. In the meantime, the TUC are pursuing an appeal to the Court of Appeal to argue that pending the reference interim relief should be granted. If successful this would mean that until the European Court of Justice reach a decision Regulation 13(3) would have no effect and parents with children born before 15 December 1999 would nonetheless be entitled to parental leave.
For the time being, employees with children born before 15 December 1999 who wish to take parental leave and who are refused by their employers, should consider lodging Tribunal claims. The claims can then be stayed pending the outcome of the TUC's challenge.