JUDGMENT
Russell (Appellant) and others v Transocean
International Resources Limited and others
(Respondents) (Scotland)
Russell and others (Appellants) v Transocean
International Resources Limited and others
(Respondents) (Scotland)
before
Lord Hope, Deputy President
Lord Brown
Lord Mance
Lord Kerr
Lord Wilson
JUDGMENT GIVEN ON
7 December 2011
Heard on 26 and 27 October 2011
Appellant Respondent
Thomas Linden QC John Cavanagh QC
Peter Edwards Sandy Kemp
(Instructed by Thompsons
Solicitors)
(Instructed by Simpson &
Marwick)
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LORD HOPE (WITH WHOM LORD BROWN, LORD MANCE, LORD
KERR AND LORD WILSON AGREE)
1. This appeal is about the application of the annual leave provisions of the
Working Time Regulations 1998 (SI 1998/1833) (“the WTR”) to offshore workers
in the oil and gas industry. Employers differ in the way they organise their
employees’ working time. The familiar pattern of working from 9am to 5pm five
days each week throughout the 52 weeks of the year, with a few weeks taken from
that commitment for annual holidays, is by no means uniform. For some, the
nature of the job requires them to work for longer hours during each working day
and to be given more days off during the working week to compensate. For others
such as teachers and others who work in the education sector, the working pattern
has to take account of the fact that the organisation for which they work is open for
some periods of the year and is closed for others. The appellants in this case work
offshore, so their working pattern is divided into time spent working offshore and
time spent onshore when, by and large, they are not working. The only unifying
factors in what is, after all, an infinite variety are that the way in which a worker’s
time is organised is a function of the nature of the job itself, and that in the
interests of health and safety workers must be given some time off to rest.
2. The WTR contain the provisions that currently provide for rest periods in
domestic law. They were designed to implement Council Directive 93/104/EC.
The 1993 Directive was repealed by Council Directive 2003/88/EC concerning
certain aspects of the organisation of working time (“the WTD”). It consolidated
the 1993 Directive and a subsequent amending Directive and took effect as from 2
August 2004. Among the aspects of the organisation of working time that are the
subject of rules in the WTD are minimum rest periods. They are set out in chapter
2. As it is concerned with laying down what are described as minimum
requirements, the provisions which it contains adopt for the most part a one size
fits all approach. There is scope for derogation in particular cases, and there are
special rules for mobile workers, those engaged in offshore work and workers on
board seagoing fishing vessels. But there is no attempt, either in the WTD or the
WTR, to identify particular patterns of working and legislate for them individually.
It is for the judiciary, in the event of a dispute, to work out how its requirements
are to be applied in particular cases
3. The problem in this case is how the statutory right to paid annual leave
under the WTR is to be applied to offshore workers in the oil and gas industry.
Typically they work a two weeks offshore and two weeks onshore (known as
“field break”) shift pattern. Some work three weeks offshore and three weeks
onshore, and some work two weeks offshore and three weeks onshore. But nothing
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turns on these differences. The central issue is whether the period spent onshore
should count towards the workers’ entitlement under regulation 13 of the WTR to
what, when the appellants made their claims, was to four weeks paid annual leave.
That entitlement has now been increased by an amendment to the WTR to 5.6
weeks, by adding 1.6 weeks to take account of Bank Holidays: regulation 13A,
inserted by regulation 2(1)(2) of the Working Time (Amendment) Regulations
2007 (SI 2007/2079). But nothing turns on that point either in this case.
4. The appellants say that “annual leave”, properly construed, means release
from what would otherwise have been an obligation to work, and that the
employers cannot discharge their obligation to provide them with annual leave by
insisting that they take this during periods of field break. Their periods of field
break, they say, is their time. It is not their employers’ time, and they insist that it
is the employers’ time out of which the annual leave should be taken. The
respondents say that the time spent onshore is in itself a rest period, as it is not
working time. And they point out that it is substantially more than the minimum of
four weeks’ annual leave to which the appellants are entitled under the WTR.
Their case is that the requirements of the WTR are more than satisfied already, and
there is no need for the appellants to take annual leave out of the periods spent
offshore.
5. As the appellants point out, the issue that this dispute raises is important not
just for the parties themselves. It has significant implications for other parts of the
labour market. We cannot resolve all the problems that may possibly arise in this
case. But the answer to the dispute has to take account of the fact that the WTD,
and the WTR which give effect to it, have been designed to apply to the labour
market generally.
Annual leave – the statutory entitlement
6. It will be necessary to examine the WTD and the WTR in more detail later.
For the time being it is sufficient to note that article 7 of the WTD provides that
member states shall take the measures necessary to ensure that every worker is
entitled to paid annual leave of at least four weeks. This is to be in accordance with
conditions laid down by national legislation and/or practice. Regulation 13(1) of
the WTR gives effect to this requirement. It provides that a worker is entitled to
four weeks’ annual leave in each leave year. Regulation 15 contains provisions
about how the days when this is to be taken are to be worked out between the
worker and the employer, if this has not already been agreed, by a system of
notices and counter-notices.
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The facts
7. The appellants’ cases are seven sample cases which have been selected
from a much larger number of similar complaints that were lodged with the
employment tribunal. They were all employed to work in various capacities on
offshore installations located in the United Kingdom Continental Shelf. There
were differences in the way their contracts were expressed as they were working
for different employers, but it was agreed that nothing turns on these details. With
the exception of Mr Craig, the appellants were contracted to work to a pattern of
two weeks offshore with a period of field break for two weeks onshore. Mr Craig
was contracted to work three weeks offshore followed by three weeks onshore.
Whilst offshore the appellants generally worked, and still work, a 12 hour shift
each day during which rest breaks are taken. This was followed by 12 hours off
duty living offshore on the installation. They did not have any days off while they
were offshore.
8. Part of the time during which the appellants were on field break was
occupied in travelling to and from the installation and Aberdeen airport by
helicopter, and to and from home once they were onshore. During the periods of
field break the appellants attended occasional events that could only be undertaken
onshore, such as training courses, appraisals, grievance and disciplinary hearings,
medical assessments and offshore survival courses. But it is agreed that these
occasional activities are of no significance for present purposes. For the most part
the appellants were free from work-related obligations during the entire period of
their field breaks. They could spend their time as they chose.
9. The appellants issued proceedings in the employment tribunal at Aberdeen
in which they contended that the relevant provisions of the WTR required the
respondents to permit them to take four weeks paid annual leave from periods
when they would otherwise be required to work on the offshore installation. The
respondents maintained that the paid annual leave entitlement was discharged by
two weeks onshore within the shift pattern. In a long and careful judgment, which
covered various other issues with which we are not concerned and was sent to the
parties on 21 February 2008, the employment tribunal held that “leave” in
regulation 13 of the WTR involved a release from what would otherwise have
been an obligation to work, or at least to be available for work or otherwise in
some way on call: para 300. So the field breaks were not to be regarded as annual
leave for the purposes of the regulation, although they might provide periods of
compensatory rest for the purposes of regulation 24 to the extent required: para
310 (xxviii).
10. In a review judgment dated 1 December 2008 the tribunal confirmed that, in
its view, a worker is entitled to exercise his or her right to paid annual leave under
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regulation 13 at such times as he or she would otherwise be obliged to work or be
available to work. In the case of a worker whose pattern of work was to work for
two weeks followed by two weeks’ break from work, the entitlement to paid
annual leave amounted to two weeks to be taken from time when he or she would
otherwise be working. It had already explained in para 308 of its judgment the
calculation on which this conclusion was based and which is not now in dispute.
The number of days worked during each period of 28 days was 14 days, which
amounted to an average of three and a half days a week. This produced an annual
leave entitlement of 14 days. The number of hours worked each day made no
difference.
11. The tribunal’s finding that the respondents had refused to permit the
appellants to exercise their right to paid annual leave because this could not be
taken out of field break was set aside by the Employment Appeal Tribunal (Lady
Smith, Mr M Sibbald and Mr R Thomson, Mr Thomson dissenting) in a judgment
issued on 6 March 2009: [2009] IRLR 519. Lady Smith said in para 130 of the
judgment that the time conceded to be available during field breaks, after allowing
for compensatory rest to take account of the fact that the appellants worked
offshore without a weekly rest period, was more than sufficient to cover the
entitlement to annual leave. It was time when they were free of all and any work
obligations and not subject to the possibility of being called on to work. It was to
be regarded as a rest period. It did not matter that, because of the working patterns
in the industry, the appellants would not otherwise be working during these
periods.
12. The appellants appealed to the Inner House of the Court of Session. Their
case was heard by an Extra Division (Lord Eassie, Lady Paton and Lord Emslie),
which refused the appeal and remitted various outstanding issues to the
Employment Appeal Tribunal to proceed accords: 2011 SC 175. The opinion of
the court was delivered by Lord Eassie. He said that the court found force in the
analysis advanced by the respondents that the structure of chapter 2 of the WTD
involved different cycles of working time, and that what article 7 of the WTD
required was that there be provided to the worker within the year at least four
remunerated weeks of the yearly cycle in which he was free from working
commitments: paras 33-34. There was nothing in the WTD to suggest that
employers might not arrange matters so that annual leave was taken during the
school holidays or such similar industrial equivalent: para 36. In para 37 he
acknowledged that the appellants were required to work for about 26 weeks every
year. But that requirement did not constitute an infringement of the cap, or limit,
on the number of working weeks in the year set by article 7 as 48 weeks. That the
26 weeks “onshore” were termed as field break was not a matter upon which
anything turned. He summarised the court’s decision in para 51:
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“… on the core question of whether the annual provision by the
employers of 26 weeks of field break fails to satisfy the entitlement
of the employees under regulation 13 of the WTR, the answer which
we give is in the negative. For all the reasons which we have given
we consider that the working pattern of field break applicable in
these appeals satisfies the requirements of the WTR, interpreted in
the light of the WTD.”
Relevant provisions of the WTD
13. The Treaty base for the WTD is identified in recital 2 of the preamble. It
refers to article 137 of the Treaty establishing the European Community, which
provides that the Community is to support and complement the activities of the
member states with a view to improving the working environment to protect
workers’ health and safety. As Lady Smith pointed out in the EAT’s judgment
[2009] IRLR 519, para 9, the source for the WTD can be traced back to the
Community Charter of the Fundamental Social Rights of Workers, adopted at
Strasbourg on 9 December 1989. Adopting words used in paras 8 and 19 of the
Charter, recitals 4 and 5 of the preamble to the WTD then state:
“4. The improvement of workers’ safety, hygiene and health at work
is an objective which should not be subordinated to purely economic
considerations.
5. All workers should have adequate rest periods. The concept of
‘rest’ must be expressed in units of time, ie in days, hours and/or
fractions thereof. Community workers must be granted minimum
daily, weekly and annual periods of rest and adequate breaks. It is
also necessary in this context to place a maximum limit on weekly
working hours.”
14. The purpose and scope of the Directive are identified in article 1, which
states that it lays down minimum safety and health requirements for the
organisation of working time and that it applies to minimum periods of daily rest,
weekly rest and annual leave, to breaks and maximum weekly working time.
Article 2 provides the following definitions of the expressions “working time” and
“rest period”:
“1. ‘working time’ means any period during which the worker is
working, at the employer’s disposal and carrying out his activity or
duties, in accordance with national laws and/or practice;
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2. ‘rest period’ means any period which is not working time.”
There then follows Chapter 2, which is headed “minimum rest periods – other
aspects of the organisation of working time.” The way working time is to be
organised is then set out in articles 3 to 7.
15. Article 3, which is headed “Daily rest”, states that the member states shall
take the measures necessary to ensure that every worker is entitled to a minimum
daily rest period of 11 consecutive hours per 24-hour period. Article 4, which is
headed “Breaks”, states that member states shall take the measures necessary to
ensure that, where the working day is longer than six hours, every worker is
entitled to a rest break, the details of which shall be laid down in collective
agreements or agreements between the two sides of industry or, failing that, by
national legislation. Article 5, which is headed “Weekly rest period”, states that
member states shall take the measures necessary to ensure that, per each seven day
period, every worker is entitled to a minimum uninterrupted period of 24 hours
plus the 11 hours daily rest referred to in article 3. Article 6, which is headed
“Maximum weekly working time”, states that member states shall take the
measures necessary to ensure that, in keeping with the need to protect the safety
and health of workers, the average working time of each seven-day period,
including overtime, does not exceed 48 hours.
16. Pausing there, one can see that the time that is available within the working
week is to be organised in such a way as to ensure (i) that every worker whose
working day is longer than six hours is entitled during the day to a rest break, (ii)
that every worker is entitled to a minimum period which is not working time of 11
consecutive hours of daily rest during each 24 hour period and (iii) that every
worker is entitled during each seven-day period to a minimum uninterrupted rest
period of 24 hours as well as 11 consecutive hours of daily rest in each 24 hour
period. Each period must therefore be measured separately from each other. They
cannot intrude upon each other or overlap.
17. Article 17 provides in paragraph 3(a) that derogations may be made from,
among others, articles 3, 4 and 5 in the case of activities where the worker’s place
of work and his place of residence are distant from one another, including offshore
work, or where the worker’s different places of work are distant from one another.
In that event, paragraph 2 of article 17 requires that the workers concerned are
afforded equivalent periods of compensatory rest or, if in exceptional cases for
objective reasons this is not possible, that they are afforded appropriate protection.
It was agreed that in the appellants’ case the first two days of each period of their
field break is accounted for as compensatory rest, to make up for the fact that they
work a 12 hour shift each day during their two weeks’ offshore.
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18. Article 7 is headed “Annual leave”. As article 17 makes clear, it cannot be
derogated from. It is in these terms:
“1. Member states shall take the measures necessary to ensure that
every worker is entitled to paid annual leave of at least four weeks in
accordance with the conditions for entitlement to, and granting of,
such leave laid down by national legislation and/or practice.
2. The minimum period of paid annual leave may not be replaced by
an allowance in lieu, except where the employment relationship is
terminated.”
The words “consecutive” and “uninterrupted” which qualify the periods of daily
rest in article 3 and weekly rest in article 5 do not appear here. So article 7 does
not require that the weeks of annual leave must be taken consecutively or that
those weeks cannot be interrupted.
19. The units of time referred to in recital 5 of the preamble (days, hours and/or
fractions thereof) do not include weeks. But the text of articles 5 and 6 shows that
the word “weekly”, which appears in the heading to those articles, refers to a
seven-day period. Article 21 of the WTD, which deals with workers on board
seagoing fishing vessels, also refers to a seven-day period, as does article 22. In
this context the reference in article 7 to “four weeks”, rather than to 28 days,
would seem prima facie to mean four uninterrupted seven-day periods, but the
conditions of the granting of such leave are left to national legislation and/or
practice. As a period of leave is not a period which is working time, as defined in
article 2, it must be taken to be what that article defines as a rest period. It is an
annual period of rest: see recital 5.
20. There is one other point. Mr Linden QC for the appellants said that the right
to paid annual leave had a qualitative dimension. It was not just a matter of
calculating, as a matter of arithmetic, how much time the worker was to have in a
given year. The word “leave” was not defined in the WTD, but it was more than
just “rest”. Reducing the matter to a simple arithmetical exercise would defeat the
safety and health purpose of the annual leave provision and ignore the point that
the compulsory rest periods are the minimum periods that are required. His
submission, as I understood it, was that the field breaks did not have the quality
that would enable any periods within them to be enjoyed as periods of annual
leave. He used it to support his basic point that, as these periods onshore were not
part of the appellants’ working time, they could not count towards their annual
leave entitlement.
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21. I do not think that a qualitative requirement, as an additional test of whether
a given period can be accounted as rest within the cycles of time that are identified,
is to be found in the wording of the WTD. It is true that the safety and health of
workers lies at the heart of the rules that it lays down. But there is no indication
anywhere that it was concerned about the quality of the minimum periods of rest,
other than to make it clear in the definition of “rest period” that it means a period
which is not working time. The periods that it has identified must be taken in
themselves to meet the objects stated in the preamble. The plain indication of its
wording is that the exercise that must be carried out is indeed simply one of
counting up the relevant hours, days or seven-day periods and ensuring that the
worker is not required to work during those periods. For example, conditions
offshore vary from installation to installation and from time to time. The quality of
the rest that can be enjoyed will vary. It may be disturbed by the noise and
vibration that are part and parcel of offshore operations. But so long as the worker
is given not less than 11 consecutive hours each day which is not working time, the
requirements of article 3 will have been satisfied.
Relevant provisions of the WTR
22. The purpose of the WTR was to implement the provisions of the WTD. Its
provisions must be interpreted, so far as possible, in conformity with the wording
and purposes of the Directive: Litster v Forth Dry Dock and Engineering Co Ltd
1989 SC (HL) 96, 101, 105; [1990] 1 AC 546, 554, 559 per Lord Keith of Kinkel
and Lord Oliver of Aylmerton; Marleasing SA v La Comercial Internacional de
Alimentación SA (Case C-106/89) [1990] ECR I-4135, para 9. So they are of
secondary importance in this case. They are nevertheless relevant, as they set out
the domestic rules that must be complied with in conformity with the obligations
set out in the WTD.
23. Regulation 2(1) sets out the meaning that is to be given to various words
and phrases, among which are the following:
“ ‘rest period’, in relation to a worker, means a period which is not
working time, other than a rest break or leave to which the worker is
entitled under these Regulations.
…
‘working time’, in relation to a worker, means-
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(a) any period during which he is working, at his employer’s disposal
and carrying out his activity or duties,
(b) any period during which he is receiving relevant training, and
(c) any additional period which is to be treated as working time for
the purpose of these Regulations under a relevant agreement.”
24. Regulation 2(2) provides that in the absence of a definition in the
Regulations, words and expressions used in particular provisions which are also
used in corresponding provisions of the WTD have the same meaning as they have
in those corresponding provisions. The word “leave” is not defined in the WTR,
but it is not defined in the WTD either. It is left to take its meaning from the
context. Like the expression “rest break”, it is a period which is not “working
time”. This accords with the fact that a period which is not working time is defined
by article 2 of the WTD as a rest period: see para 14, above.
25. The rules about daily rest, weekly rest periods and rest breaks are set out in
regulations 10, 11 and 12 in terms which, without reproducing exactly the
language of the WTD, reflect its requirements. They also contain some additions.
For example, regulation 11, which deals with the weekly rest period, allows the
employer to provide the worker with either two uninterrupted rest periods each of
not less than 24 hours within each 14-day period or one uninterrupted rest period
of not less than 48 hours in each such 14-day period in place of the entitlement to
an uninterrupted rest period of 24 hours in each seven-day period during which he
works for the employer. Regulation 13, as amended, which sets out the entitlement
to annual leave, contains the following provisions:
“(1) Subject to paragraph (5) [which is not relevant for present
purposes], a worker is entitled to four weeks’ annual leave in each
leave year.
…
(9) Leave to which a worker is entitled under this regulation may be
taken in instalments, but –
(a) it may only be taken in the leave year in respect of which it is
due, and
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(b) it may not be replaced by a payment in lieu except where the
worker’s employment is terminated.”
26. Regulation 15 makes provision for the dates on which annual leave may be
taken under regulation 13. This is where the conditions for the granting of such
leave, referred to in article 7 of the WTD, are to be found. The basic rules are set
out in paragraph (1). They are that a worker may take leave to which he is entitled
on such days as he may elect by giving notice to his employer in accordance with
paragraph (3), but that this is subject to any requirement imposed on him by his
employer under paragraph (2). Paragraph (2) provides:
“A worker’s employer may require the worker –
(a) to take leave to which the worker is entitled …; or
(b) not to take such leave,
on particular days, by giving notice to the worker in accordance with
paragraph (3).”
Paragraph (3) states that a notice under paragraph (1) or (2) may relate to all or any
part of the leave to which a worker is entitled in any leave year, must specify the
days on which leave is or is not to be taken and, where the leave on a particular
day is to be in respect of only a part of a day, its duration. It contains provisions
about the date before which notice is to be given to the employer or the worker, as
the case may be.
27. Regulation 21 takes advantage of the provisions about derogation in article
17 of the WTD. It provides that regulations 10, 11 and 12 do not apply in relation
to a worker, among others, whose activities are such that his place of work and
place of residence are distant from one another. Regulation 24 provides that where
the application of any provision of the Regulations is excluded by regulation 21
and a worker is accordingly required by his employer to work during a period
which would otherwise be a rest period or rest break, his employer shall wherever
possible allow him to take an equivalent period of compensatory rest. This accords
with what is to be found in article 17 of the WTD: see para 17, above.
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The appellants’ case
28. Mr Linden’s case was based on the proposition that leave could not be
taken out of the periods when the appellants were on field break because they were
not required by their contracts to work during those periods. These weeks were, as
it was put, theirs already. It was inherent in the concept of leave that the worker
was being released from the obligation to work. As they were not required to work
during their field breaks, there were no periods within them for which they
required to be given leave in order to remain onshore. This gave meaning to the
concept of leave, and it was how the bargain between the parties should be
interpreted. It was more than just “rest”. It was the worker’s right to say to his
employer that, although his employer required him to work during a given period,
he wanted to take his annual leave and to be released from the obligation to work
during that period so that he could do so.
29. He submitted that the importance of the purpose for which the right to leave
was given was illustrated by Merino Gomez v Continental Industrias del Caucho
SA (Case C-342/01) [2005] ICR 1040. The problem that arose in that case was a
conflict between the Community law right to maternity leave on the one hand and
the statutory right to annual leave under the Spanish implementation of article 7 of
the WTD on the other. The ECJ held that the entitlement to paid annual leave was
not to be regarded as having been met where the worker had been absent on
maternity leave, as the purposes of these two entitlements was different. In paras
29, 30 and 32 the court said (omitting its references to previous case law):
“29. The entitlement of every worker to paid annual leave must be
regarded as a particularly important principle of Community social
law from which there can be no derogations and whose
implementation by the competent national authorities must be
confined within the limits expressly laid down by Directive 93/104
[the then current working time Directive].
30. It is significant in that connection that that Directive also
embodies the rule that a worker must normally be entitled to actual
rest, with a view to ensuring effective protection of his health and
safety, since it is only where the employment relationship is
terminated that article 7(2) permits an allowance to be paid in lieu of
paid annual leave.
…
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32. The purpose of the entitlement to annual leave is different from
that of the entitlement to maternity leave. Maternity leave is
intended, first, to protect a woman’s biological condition during and
after pregnancy and, secondly, to protect the special relationship
between a woman and her child over the period which follows
pregnancy and childbirth.”
30. Mr Linden referred also to Stringer v Revenue and Customs Comrs (Joined
Cases C-520/06 and C-350/06) [2009] ICR 932, in which the issue was whether
workers continued to accrue an entitlement to paid annual leave whilst absent on
long term sickness and were entitled to take it during periods of absence on sick
leave. He submitted that the judgment identified the qualitative nature of paid
annual leave, which was different from sick leave. After recalling what had been
said about annual leave in Gomez, paras 29 and 30, the Grand Chamber said this in
para 25 of its judgment:
“It is common ground that the purpose of the entitlement to paid
annual leave is to enable the worker to rest and to enjoy a period of
relaxation and leisure. The purpose of the entitlement to sick leave is
different. It is given to the worker so that he can recover from being
ill.”
But it did not add anything to its previous jurisprudence on this matter. There was
no indication here or in Gomez that the quality of any periods of time that were set
aside for rest affected the question whether, in terms of their duration or the time
that was selected, they were sufficient for the purposes of the WTD.
31. In Pereda v Madrid Movilidad SA (Case C-277/08) [2009] ECR 1-8405,
recalling what had been said about this in Gomez and Stringer, the ECJ again said
that the purpose of the entitlement to annual leave was to enable the worker to rest
and enjoy a period of relaxation and leisure: see paras 18-21. Mr Linden drew
attention to the fact that the claimant in that case was under a 52 week contract that
required him to work all the year round. He said that this was to be contrasted with
the facts of this case, where the contract to work was what he described as a 26
week contract and there was no obligation to work for the other 26 weeks. But
there was no suggestion in the Pereda case that the scheduled leave period did not
count towards the statutory minimum annual leave entitlement because it was a
period when the workers would not otherwise be working. It is to be noted too that
the court said in para 22 that the scheduling of leave according to the rules and
procedures of national law could take account of the various interests involved,
including the overriding reasons relating to the interests of the undertaking. In the
appellants’ case, it is the overriding interests of the employers that has led to the
working pattern being organised in a way that requires their workers to work
Page 14
throughout the 14 days when they are offshore and to have their periods of rest and
relaxation, other than breaks and the daily rest, during their field break onshore.
32. Reference was also made to Sumsion v BBC (Scotland) [2007] IRLR 678,
which the employment tribunal attempted to distinguish from the present case. The
BBC sought to discharge its obligation to Mr Sumsion by requiring him to take
every Saturday off as a leave day to make up his annual leave under regulation 13
of the WTR. His contract referred to the fact that his services would be required
for up to six turns of duty per week, and that he was to be entitled to six days leave
to be taken on any sixth non-scheduled days in a week. The employment tribunal
held in Sumsion that the BBC was not in breach of the WTR by requiring him to
take his leave on Saturdays, and its decision was upheld by the EAT. In this case
the employment tribunal said that the period of leave which Mr Sumsion was
given was one when there was an obligation to work, whereas in the case of the
field break out of which the respondents said leave should be taken there was no
such obligation and never had been: para 289. I would not draw that distinction. It
seems to me that the arrangements in both cases were essentially the same. It was
known from the outset that the periods during which the employer was insisting
leave should be taken were periods when the workers would not be required to
work.
33. That said, the facts of that case were, as Lord Eassie pointed out in para 50
of his opinion, somewhat special. It was a short term contract under which it could
be said, as the EAT in that case concluded, that the employee had elected for his
Saturdays to be taken as leave days under regulation 15 with the result that it was
open to his employers to request him to do so. The case was also decided in the
light of the decision of the Court of Appeal in Inland Revenue Commissioners v
Ainsworth [2005] EWCA Civ 441, [2005] ICR 1149 before that decision was in
effect set aside by the ECJ’s ruling in that case: see Stringer v Revenue and
Customs Comrs [2009] ICR 932. And the device of requiring the worker to take
his leave on Saturdays (“the Saturday problem”) does not arise in the case of the
offshore workers. For all these reasons I do not think that the EAT’s decision in
Sumsion offers any assistance to the solution of the problem that is before us in
this case. It is worth noting however that in para 26 of its judgment in that case the
EAT recognised that there might be cases in which, if the whole facts and
circumstances were examined, it could be demonstrated that the employer, in
nominating Saturday as a leave day, was not affording any real leave at all.
Discussion
34. I do not think that is right to describe the contract in this case, as Mr Linden
sought to do, as a 26 week contract. The fact is that the appellants were under
contract with their employers for the whole of each year. Their working pattern
Page 15
was organised in such a way that working time was limited to the 26 weeks when
they were offshore. But their contractual relationship with their employers
continued irrespective of where they were at any given time. They had continuity
of employment throughout the year. The fact that their pattern of working was a
repeating shift pattern was a product of that contractual relationship.
35. The critical question is how that repeating shift pattern falls to be viewed
for the purposes of the WTD. How is it to be determined whether the rules that it
lays down for what recital 5 of the preamble refers to as daily, weekly and annual
periods of rest are satisfied?
36. As I have already explained (see para 21, above), I do not think that the
quality of the periods that are set aside during each cycle determines whether the
minimum requirements have been satisfied. I accept that the purpose of the
entitlement to annual leave is to enable the worker to rest and enjoy a period of
relaxation and leisure, as the ECJ has repeatedly made clear. But the WTD has met
that purpose by laying down the minimum periods of rest that must be given in
each cycle. As the ECJ said in Gomez [2005] ICR 1040, para 30, the fact that rest
means actual rest is demonstrated by the rule that it is only where the employment
relationship is terminated that article 7(2) permits an allowance to be paid in lieu
of paid annual leave. But the ECJ has not said that a pre-ordained rest period,
when the worker is free from all obligations to the employer, can never constitute
annual leave within the meaning of that article. I would hold therefore that “rest
period” simply means any period which is not working time: see article 2. “Any
period” includes every such period irrespective of where the worker is at that time
and what he is doing, so long as it is a period when he is not working. I think it is
plain that any period when the appellants are on field break onshore will fall into
that category.
37. The employment tribunal recognised in para 286 of its judgment that there
was an element of circularity in the appellants’ argument:
“ie, is it that a particular period cannot be said to be leave because it
is a period when there is no obligation to work, or is it that there is
only no obligation to work because the period in question has
already been designated as leave?”
It referred to the case of teachers in non-term time and tradesmen in the “trades
fortnight” as examples of the latter where the period when annual leave could be
taken had already been designated. But it did not try to resolve this apparent
anomaly, as it did not see these cases as giving rise in practice to any difficulty.
The solution which it favoured, contrary to what happened in practice in those
Page 16
cases, seemed to it to be founded on the common sense proposition that the
worker’s entitlement to each of the measures provided for by the WTR required to
be real, in the sense that they genuinely provided a break from what would
otherwise be an obligation to work or to be available to work. But the facts of this
case do not support the idea that the field break is not a genuine break or otherwise
unreal. Nor has there been any suggestion that the pattern of working has had, or is
liable to have, an adverse effect on the appellants’ health or safety.
38. For these reasons I would hold that the respondents are entitled to insist that
the appellants must take their paid annual leave during periods when they are
onshore on field break. In my opinion this is permitted by regulation 13 of the
WTR, read in conformity with article 7 of the WTD.
Other problem cases
39. Attention was drawn in the course of the argument to two other problem
cases which it was said might give rise to difficulty. The first was the case of
teachers, already mentioned by the employment tribunal, who are required to take
their annual leave during non-term time. Various other cases fall into this category,
such as professional footballers, staff who work in the devolved legislatures such
as the Scottish Parliament and in the Parliament at Westminster and people who
work full-time during the season in the tourist industry. They are people who are
left, for the most part, with no option but to take their paid annual leave during
periods when they are not required to work. But the problem in their case
disappears if, as I would hold, there is no objection to their being required to take
their annual leave during those periods.
40. The other problem was referred to as the Saturday problem, which is
illustrated by the case of Sumsion. It was said to arise from the ability of employers
under regulation 15 of the WTR to designate days within the week when the
worker would not otherwise be working as annual leave. Carried to its extreme this
could result in workers who worked a five day week, Sundays being treated as the
weekly rest period, being required to take their annual leave each Saturday. This
would exhaust the possibility of there ever being whole weeks in the year when
annual leave could be taken. A literal reading of the employer’s rights under
regulation 15(2) suggests that this course might be open to him. It would obviously
be an abuse of the system as the EAT indicated in Sumsion v BBC (Scotland)
[2007] IRLR 678, para 26. But the suggestion was that it was an abuse which
could not be prevented.
41. This raises a different problem from that which arises in the case of the
offshore workers. The question is not whether a worker can be required to take
Page 17
annual leave during a period when he would not otherwise have been working but
whether the worker can be forced to take his entitlement to annual leave in periods
which are shorter than one week. But it is not a problem that has to be answered in
this case. There seems to me to be much to be said for the view that, when article 7
of the WTD is read together with the purposes identified in the preamble and in the
light of what the ECJ said in Gomez [2005] ICR 1040, para 30, the entitlement is
to periods of annual leave measured in weeks, not days. The worker can opt to take
all or part of it in days, if he chooses to do so. But the employer cannot force him
to do so. But I do not need to reach a concluded view on this point, and I have not
done so.
Reference
42. Mr Linden submitted that the meaning that was to be given to the
expression “annual leave” in article 7 of the WTD was not so obvious as to leave
no room for reasonable doubt and that, if the court was not persuaded that the
appeal should be allowed, the issue should be referred to the CJEU for a
preliminary ruling under article 267 of the Treaty on the Functioning of the
European Union. Various other issues were listed in his written case as requiring a
reference.
43. I am not persuaded that a reference is necessary in this case on any of the
questions that have been listed. We must be mindful of our responsibility as a
court against whose decisions there is no judicial remedy under national law. But
the ruling in Srl CILFIT v Ministry of Health (Case 283/81) [1982] ECR 3415
permits us to decline to make a reference if a decision on the point is not necessary
to enable the court to give judgment or the answer to the question is acte clair. I do
not think that the meaning to be given to article 7, for the purposes of this
judgment, is open to any reasonable doubt. The wording and structure of the WTD
plainly favours the respondents’ argument, and I can find nothing in any of the
judgments of the ECJ to which we were referred that casts doubt on the meaning
which I think should be given to it. I would refuse the request for a reference.
Conclusion
44. I would dismiss the appeal. I would affirm the interlocutor of the Extra
Division of the Court of Session.
