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Working Time Directive: Supreme Court decision impacts on holiday entitlement for staff with unusual working patterns

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The Supreme Court has handed down a decision in a case which has a significant impact on the holiday entitlement of workers who do not follow a standard ‘nine to five’ working pattern for five days each week throughout any given year.

 

In Russell v Transocean a number of workers, all of whom are employed on offshore oil and gas installations, were contracted to work to a pattern of two weeks offshore followed by two weeks onshore.

They argued that the Working Time Directive means that "annual leave" should entail release from what would otherwise be an obligation to work. In other words, they argued for their entitlement to annual leave to be out of their two-weeks "on", rather than out of their two-weeks "off" (known as field breaks).

The issue was therefore whether annual leave must be carved out of what would otherwise be working time or (as their employers contended) whether it could also be taken from time which would in any event be non-working time.

 

Tim Wragg, senior associate at international law firm Eversheds said: "The workers' claims were upheld in the employment tribunal, which held that the workers were entitled to take their annual leave during time when they were scheduled to be working offshore. On appeal, the EAT decided that the workers' field breaks did constitute time available for annual leave and that it did not matter that they would not otherwise be working during those breaks. The Court of Session agreed with the EAT, but the workers appealed.

"The Supreme Court has refused the workers' request for a reference to the CJEU and dismissed their appeal. In dismissing the workers' appeal, the Supreme Court has stated that the term "rest period" simply means any period which is not working time, irrespective of where the worker is and what he is doing, so long as it is a period when he is not working. The periods when the workers are on field breaks therefore plainly fall within that category. As such the employers are entitled to insist that the workers take their paid annual leave during periods when they are onshore on field breaks.?"This decision will obviously come as a relief to employers in the oil and gas industry. A ruling by the Supreme Court that annual leave can only consist of time which would otherwise be working time would have had staggering consequences in this sector. Oil industry leaders say such changes could have restricted employees to working eight days a month offshore, meaning large sections of North Sea operations may have had to close.

"Significantly, the effects could have been no less dramatic for other employers as the implications of this decision go far beyond those employed on offshore installations. For example, it is common practice in the education sector to employ staff to work on a term-time only basis and many other employees in other sectors also work on term-time only contracts. Similarly, the decision could have had a major impact on the holiday entitlement of those who work "continental" shift patterns (e.g. four on, four off) or annualised hours. The Supreme Court's decision will be welcomed by employers of all such atypical workers as it means that, as far as holiday entitlement is concerned, it will be "business as usual.""