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A rock of mutuality and a hard place
The TUC's legal challenge to the parental leave cut off date has been successful. A few days before the case was due to be heard in the European Court of Justice on 3 May 2001, the Government climbed down and conceded that the right to parental leave should be available to parents of all children aged under five, regardless of whether the children were born or adopted before or after the 15 December 1999 cut off date.
The issue in dispute was Regulation 13(3) of the Maternity and Parental Leave etc Regulations 1999. Regulation 13(3) restricts parental leave to the parents of children born on or after 15 December 1999, or placed for adoption on or after that date. The TUC, represented by Thompsons, argued that Regulation 13(3) was in breach of the Parental Leave Directive. In judicial review proceedings last year, the High Court broadly agreed with the TUC but referred the matter for a decision to the European Court of Justice for a decision.
As a result of the Government's climb down, Regulation 13(3) will be abolished. From now on, parents who otherwise qualify for parental leave may take leave even if their children were born or adopted before 15 December 1999. In addition, transitional provisions will ensure that those parents who have lost out on their rights to take parental leave because their children have since reached the age of 5 or have been adopted for more than five years, will have a protected period in which to take the leave that they have lost.
The Government has insisted on a short period of consultation before drafting amending Regulations. In the meantime, anyone wishing to take parental leave who has so far been prevented by reason of Regulation 13(3) should ask their employer to grant leave, and if they do not, should lodge a Tribunal application pending the introduction of the amending Regulations.
The TUC have prepared a full briefing document on the case. Contact: Lucy Anderson at TUC, Congress House, Great Russell Street, London WC1B 3LS (telephone 020 7467 1210, email landerson@tuc.org.uk).