Today the Supreme Court has handed down its decision in Russell and others v Transocean International Resources Limited (Scotland) that annual leave for offshore workers can be taken out of onshore "field breaks".

Holiday slides from the lower courts

The Supreme Court's decision brings to an end litigation stretching back to October 2007 when the Aberdeen Employment Tribunal ("ET") first heard the "sample" cases of seven workers (taken from a cast of hundreds), all of whom worked on offshore installations on a roster of 2/3 weeks offshore followed by a corresponding amount of time on onshore field break. All seven workers had had their holiday requests denied by their employers, since they had asked to take their holidays during their offshore working cycle rather than during onshore field break. 

At first instance, the ET agreed with the unions that the 26 weeks spent by workers on field break could not count towards statutory holiday entitlement under the Working Time Regulations 1998 ("WTR"). The unions' celebrations were short-lived however, as the Employment Appeal Tribunal in March 2009 reversed this decision in favour of the employers.

The unions' subsequent appeal in 2010 to the Court of Session was unsuccessful, their Lordships being unmoved by the unions' argument that allowing employers to count field break towards annual leave entitlement could pave the way for regular onshore Monday-to-Friday workers being made to take their holidays at the weekend. Instead the Court preferred to avoid the "absurd results inherent in the [unions'] argument" along with the knock-on effect such a principle would have on other professions (such as teachers) who are routinely made to take their holidays during certain periods of the year when they would not otherwise be working.

With both employers and the unions disputing the interpretation of the European Working Time Directive, it was perhaps with some surprise that their Lordships noted the lack of appetite from both parties to refer any questions to the Court of Justice for the European Union. Although the Court of Session considered such a referral unnecessary, the "EU door" was left open and the unions were eventually granted leave to appeal the decision to the Supreme Court.

Supreme Court decision: the holiday's over

The Supreme Court focussed on the simple formulae in the EU Directive, including that set out in Article 7 which provides for a minimum four weeks annual leave for workers. The Supreme Court rejected the unions' assertion that there is an additional requirement relating to the "quality" of such rest. It also denied the argument that the individuals were working only on 26 week contracts. Critically, none of the European decisions relied on by the unions determined that a pre-ordained rest period, when the worker is free from all obligations to the employer, can never constitute annual leave:

"..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 [workers'] health or safety".

Whilst the unions sought to have the meaning of the term "annual leave" (and various other issues) referred to the Court of Justice for the European Union for clarification, the Supreme Court considered such a referral to be unnecessary.

Comment

The Supreme Court's decision is clearly a welcome one for the offshore oil and gas industry, but also to other sectors in which work is compressed (such as education). Nevertheless, we would recommend that employers wishing to enforce the taking of holiday to particular periods of the year, should ensure that these arrangements are suitably documented and notified to employees. This could be done by employment documentation (such as the contract, handbook or policy), by annual notification to employees, or (where applicable) by collective agreement.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 07/12/2011.