The Inner House of the Court of Session has issued an important
decision, which helpfully clarifies the law where claims for annual
leave are made. The case is Russell & Others v Transocean &
Others, and involved claims by several hundred offshore workers for
annual leave. They worked, almost always, a pattern of two weeks on
the installation followed by two weeks off it, and argued that the
period off the installation could not count towards annual leave,
which had to be taken from scheduled working time. The rota of 26
weeks of work, and 26 weeks of leave, had to be changed to 22 weeks
of work, and 30 weeks of leave.
The same principle could be applied to all those who work
equivalent patterns in the UK, and beyond, and could in principle
have effected every worker if the unions' argument - that holidays
had to be taken out of working time - was correct.
The Court held that that argument was wrong. In outline, the
Court's decision was:-
1. Annual leave is measured in weeks and is a period of seven
consecutive days in which no work is done.
2. The Working Time Directive is an EU measure with a purpose of
health and safety, setting minimum standards, so that a week
without work is sufficient to meet the objective of having adequate
rest. It is measured in quantity, being units of time, and not by
the quality of the rest.
3. The entitlement to annual leave effectively acts as a cap on
the amount of weeks worked. Under the Working Time Directive, that
is four weeks of annual leave, and therefore the maximum number of
weeks in which there can be work is 48. In the UK, that has been
increased to 5.6 weeks of annual leave, and therefore a maximum of
46.4 weeks in which there can be work.
4. The cap on the number of weeks in which there can be work is
in the context of other caps on the quantity of work that apply,
primarily (a) 13 hours per day (with 11 hours of daily rest) (b)
six days per week (with one day of weekly rest) and (c) 48 hours
per week on average over a reference period. Where the working
arrangements do not allow such leave to be taken during the course
of the day or week, including for offshore workers, compensatory
rest can be provided thereafter. This means that the weekly rest is
taken not when offshore, but in the first days onshore.
5. The same principle holds good whether the worker works full
or part time, or on irregular work patterns. Annual leave can
therefore be taken during a period when either some or no work is
normally carried out. The important aspect is that for four weeks,
each of seven or more consecutive days, there is no work.
6. Annual leave could therefore be taken during the non-worked
part of the offshore rota, and the leave provided by that rota was
far in excess of the leave required under the Regulations.
7. The Working Time Regulations, which introduced the Directive
into UK law, were not framed in a manner that required any
different outcome.
This outcome resolves the problem with the unions' argument,
that those with leave already built into their work/rest cycles
would have to have further leave from the work part of it, so for
example teachers would have to have further leave during term time.
That was clearly a nonsense. It also confirms that employers cannot
require annual leave to be taken one day at a time, for example
every Sunday, leaving the Monday to Friday worker having Saturday
as weekly rest, but working 52 weeks per year.
The Decision accordingly clarifies what had been a difficult
area of the law, with inconsistent decisions, whilst still allowing
employees the facility to take their days of leave in periods of
less than a week if they wish to, providing that that is on dates
that are in accordance with the employers' requirements. At a time
of increasing pressure on cost, it is a welcome decision for all
employers.
Michael Jones QC and Sandy Kemp, Solicitor Advocate, both
partners at Simpson & Marwick, appeared for the successful
employers at the Inner House.
If any further details are required, please contact Sandy at sandy.kemp@simpmar.com or
by telephoning 01224 624924.