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Annual Leave and Non-Working Periods

23 April 2012

The Supreme Court has upheld a decision of the Court of Session in Scotland that employers are entitled to require offshore workers in the oil and gas industry to take their annual leave during their ‘field breaks’ (Russell and others v Transocean International Resources Ltd. and others).

The claimants were contracted to work a pattern of two weeks offshore followed by a two-week period of field break onshore. Whilst offshore, they worked 12-hour shifts followed by a 12-hour break. Whilst onshore, they were, for the most part, free from any work-related obligations and could spend their time as they chose.

The workers claimed that the annual leave provisions of the Working Time Regulations 1998 (WTR), which give effect to the EC Working Time Directive (WTD) in domestic law, required their employers to permit them to take their annual leave during periods when they would otherwise be required to work on the offshore installation. The employers argued that the paid annual leave entitlement was satisfied by the two weeks’ onshore time included in the overall shift pattern. The Employment Tribunal upheld the workers’ claim on the ground that the entitlement to leave involved a release from what would otherwise have been an obligation to work, but this decision was set aside by the Employment Appeal Tribunal and, subsequently, the Court of Session. The workers took their case to the Supreme Court.

The Supreme Court was of the view that the workers were under contract with their employers for the whole year, not just for the 26 weeks when they were offshore. The fact that their pattern of working was a repeating shift pattern was a product of that contractual relationship. As the European Court of Justice (ECJ) has repeatedly made clear, the purpose of the entitlement to annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure and, to that end, the WTD lays down minimum periods of rest that must be provided in each work cycle. The ECJ has made no ruling, however, that a pre-ordained rest period, during which a worker is free from any obligations to the employer, can never constitute annual leave. In the Supreme Court’s view, ‘rest period’ simply means any period which is not working time and any period when offshore workers are on a field break onshore would fall into that category.

The Supreme Court refused a request for a referral to the ECJ regarding the exact definition of the term ‘annual leave’ under the WTD on the ground that this was not necessary. For the purposes of this judgment, the meaning of the expression was not open to any reasonable doubt.

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