|
These Regulations provide that an employee may not take more than four weeks' parental leave to care for a child in any one year. It should be noted that special rules apply in relation to disabled children for whom an employee cares. The Regulations also prohibit an employer from subjecting an employee to a detriment and/or dismissing them because they have taken parental leave or attempted to take parental leave.
It is not an unusual situation for an employee to seek to exercise their right to parental leave to plug short childcare gaps of a day or so where they have run out of holiday entitlement.
Declining parental leave of one or more weeks
If an employer receives a request for parental leave of one or more weeks, it may decline the request if it considers that the business would be unduly disrupted during the requested period, unless the leave requested is to begin on the day the employee's child is expected to be born.
If a request is declined and the employee fails to attend work in the relevant period, an employer is not prevented from disciplining the employee for unauthorised absence from work, being mindful to follow the statutory disciplinary procedure (and any applicable company procedure) if relevant disciplinary action is contemplated. This should not give rise to a claim of detrimental treatment as the reason for the disciplinary action is not that the employee made a request to take parental leave, but that they were absent from work without authorisation.
|
South Central Trains Ltd v Rodway
In this case the Court of Appeal had to consider whether, in the absence of any express provisions in an employer's terms and conditions of employment and/or handbook addressing the issue, an employee is entitled to take parental leave in units of one day.
Facts
R had been employed by S for nine years when he applied to take a day's holiday to look after his two-year-old child while the child's mother visited her disabled sister. S advised R that it would not be able to guarantee that he could take holiday on the day requested, so R made a written request to take a day's parental leave. He did not receive a written reply but was told verbally two days before the day of leave in question that it was not possible to find any cover for his position. R warned his employer that he would be absent and took the day off anyway.
Subsequently, disciplinary proceedings were brought against him for taking unauthorised leave. R received a written warning and was penalised a day's pay. R then brought proceedings in the employment tribunal alleging that he had been subjected to detrimental treatment because he had been refused his request to take parental leave and had then been disciplined for taking it.
Court of Appeal
The Court of Appeal held that the Regulations did not allow employees to take a period of parental leave of less than a week, or to take a single day's leave and then treat that day as using up a whole week's parental leave entitlement. In the absence of any express provision in the employment contract or staff handbook, the default provisions under the Regulations applied and these required that a whole week must be taken.
Conclusion
In many cases it will be much less disruptive for an employer to arrange cover for an employee's absence of a day or a couple of days than it will be to cover an employee's absence for an entire week. Accordingly, if an employer wishes to retain a degree of flexibility, some provision for this should be incorporated into its policies and procedures so that the more rigid default regime under the Regulations does not bind it unnecessarily.
|