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Annual Leave and Offshore Working

15th December, 2011

In Russell and others v Transocean International Resources Ltd and others [2011] UKSC 57 employees who worked on offshore installations asked their employer if they could take annual leave during their offshore working periods but were refused. They submitted claims to the Aberdeen employment tribunal where their claim was upheld.  It was held that they were entitled to take their annual leave during offshore time.

The employers appealed to the Employment Appeal Tribunal (EAT), which upheld the appeal. It decided that time spent onshore during field-breaks was not working time but a rest period, and time available for annual leave. It did not matter that the employees would not otherwise be working during those periods.  The employees appealed to the Court of Session, which upheld the EAT’s decision.

The employees appealed to the Supreme Court claiming that time spent onshore was in itself a rest period as it was not working time and the time spent onshore was substantially more than the minimum four weeks’ entitlement under the Working Time Regulations (the Regulations) and, therefore, there was no need for the employees to take annual leave out of the periods spent offshore.

The Supreme Court dismissed the appeal and refused the request to make a reference to the European Court of Justice. It held that the employers were entitled under regulation 13 of the Regulations, read in conformity with Article 7 of the Working Time Directive (the Directive), to insist that the employees take their paid annual leave during periods when they were onshore on field-breaks.

In the court’s view, field-breaks fell within the category of a rest period. Therefore, field breaks could be used to satisfy the employees’ annual leave entitlement.

Since the Supreme Court refused to make a reference to the ECJ on the interpretation of annual leave under the Directive, this case should now be the last word on the question of whether an employer can designate non-working time as annual leave. The decision is not only of relevance to the oil and gas industry where shift patterns involving field-breaks are common. It also applies to other sectors where employees are required to take leave during periods when they are not required to work, such as teachers, professional footballers or those who work in the tourist industry.

For more information on annual leave under the Regulations and the Directive please do not hesitate to contact Helen Kidd in the employment team.

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