In accordance with the Working Time Regulations 1998 (WTR), workers are entitled to 5.6 weeks’ paid annual leave in each leave year. This is relatively straightforward concept in relation to a typical 9 till 5 worker who works 5 days each week throughout the whole year, with a few weeks taken from that commitment for annual holidays. However, this is by no means a uniform working pattern. What about workers with a less regular working pattern? The underlying principle behind the European legislation which the WTR implements is that in the interests of health and safety, workers should be given time off to rest.
A recent decision of the Supreme Court has offered some guidance on the issue of holiday entitlement for workers with atypical working patterns. This case related to a group of offshore workers in the oil and gas industry. The workers generally followed a pattern of working two weeks offshore (where they would carry out twelve hour shifts followed by a twelve hour rest) and two weeks onshore when they were not contractually obliged to carry out work but might attend occasional appraisals or training.
The workers raised claims that they had been denied their statutory entitlement to 4 weeks’ annual leave (the cases were raised before the statutory entitlement increased to 5.6 weeks). The employer resisted the claims on the basis that the 26 or more weeks the claimants spent onshore on “field breaks” was more than sufficient to encompass their statutory annual leave entitlement. The workers argued that the proper interpretation of ‘annual leave’ meant release from what would have been an obligation to work, and that as a result they ought to have been permitted to take annual leave during periods when they would have been offshore.
The initial claims were successful at the Employment Tribunal. However, these were overturned by the Employment Appeal Tribunal (EAT). The Court of Session did not interfere with the decision of the EAT, prompting the workers to appeal the case further to the Supreme Court. The Supreme Court agreed with the employers and refused the appeals. The reasoning given by Lord Hope was that under the European legislation providing for entitlement to rest periods, ‘rest period’ simply means any period which is not working time, irrespective of where the worker is and what he is doing. Accordingly, the rest periods which were onshore field breaks fell within this category and the workers were not entitled to take their annual leave entitlement as time off from offshore work.
The decision has practical implications for other workers with irregular patterns of work. For example, teachers who are allowed holidays which match the school holidays could not insist on having part of their annual leave during term time (unless their contract of employment provided for additional periods of contractual annual leave).Jack Boyle Employment Solicitor