Parental leave Regulations referred to ECJ

In May 2000, a legal challenge to the UK's parental leave Regulations by the Trades Union Congress was referred to the European Court of Justice for determination.

On 23 May, the High Court announced that it would refer a legal challenge to the UK's Maternity and Parental Leave Regulations 1999 to the European Court of Justice (ECJ) for a decision. The ruling followed a hearing the previous week in which the Trades Union Congress (TUC), which has brought the case against the Government (UK0002154N), argued that the Regulations' restriction of parental leave rights to the parents of children born on or after 15 December 1999 (UK9912144F) was in breach of the EU Directive (96/34/EC) on parental leave. The case received considerable media attention, not least because the TUC was represented in court by Cherie Booth QC- who is married to the UK Prime Minister, Tony Blair- only days before she gave birth to the couple's fourth child.

The TUC argued that the parental leave Directive, which the Regulations were meant to implement, does not allow EU Member States to include such a cut-off date - which the TUC says has the effect of excluding up to 2.7 million working parents from the statutory right to parental leave. In April, following a complaint by the Irish Congress of Trade Unions, the European Commission issued a reasoned opinion stating that a similar provision in Ireland's parental leave legislation was inconsistent with the Directive (EU0005246N). The Irish government has reportedly said that it is identifying measures to put the Commission's opinion into effect.

Announcing their decision, the judges hearing the case said they expected the TUC's arguments "to prevail" in the ECJ, adding that: "If, as we think, the Secretary of State [for Trade and Industry, Stephen Byers, who made the Regulations] may have acted unlawfully, the sooner this is made clear the better." However, they said the position was not clear enough for them to make a judgment without guidance from the European Court. Observers believe that it could take up to two years for the ECJ to issue a ruling.

In a statement after the High Court's decision, TUC general secretary John Monks said that the outcome was "a clear moral victory" for the TUC and urged the UK government to "back down gracefully" without waiting for an ECJ ruling. He continued: "Fighting what looks like a doomed case in the European Court simply to delay parental leave for those parents with children born before the December deadline sends all the wrong signals from a government that says it wants a better work/life balance. It is sad to see the UK government take such a family-unfriendly position."

Earlier in May, trade and industry secretary Stephen Byers launched a government review of measures to help parents balance their work and family commitments. This will lead to the publication of a Green Paper in the autumn. The review will look at:

  • the impact of statutory levels of maternity pay and leave;
  • the extent to which employers currently offer additional entitlements and to what effect;
  • the take-up of parental leave and the factors which deter people from taking it;
  • the benefits of women returning to work after childbirth working part time, from home or on flexible hours; and
  • what can be done to simplify regulation and provide employers and employees with clearer guidance.
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