December 7th, 2011 by James Goudie KC

 In Russell v Transocean International Resources Ltd [2011] UKSC 57 the Supreme Court made short work of unanimously dismissing the appeal and refusing a reference to Luxembourg.  The hearing was on 26 and 27 October 2011.  Judgment was given on 7 December 2011.

The case concerned the Working Time Directive 2003 and the Working Time Regulations 1998.  They of course contain provisions which lay down minimum health and safety requirements for the organisation of working time, with ‘minimum rest periods’ consisting of daily rest, weekly rest and annual leave.  They provide that the worker is entitled to paid annual leave of at least four weeks (at the time the Appellants made their claims).   They provide that a worker may take leave to which he is entitled on such days as he chooses by giving notice to his employer, but that the employer may require him to take leave on particular days.

Mr Russell and others were all employed to work in various capacities on offshore oil and gas installations.  The Respondents are their employers. With the exception of one, all were contracted to work to a pattern of two weeks offshore followed by two weeks onshore (called a ‘field break’). Whilst offshore the Appellants generally worked a 12 hour shift each day during which rest breaks were taken. This was followed by 12 hours off duty living offshore on the installation. They did not have any days off while they were offshore. For the most part the Appellants were free from work-related obligations during the entire period of their field breaks.

The issue in the case is whether the period spent onshore should count towards the workers’ entitlement to four weeks’ paid annual leave.

The Employment Appeal Tribunal held that the time available during field breaks, after allowing for compensatory rest to take account of the fact that the Appellants worked offshore without a weekly rest period, was more than sufficient to cover the entitlement to annual leave. The Inner House of the Court of Session refused the Appellants’ appeal, holding that what was required was that there be provided to the worker within the year at least four remunerated weeks in which he was free from working commitments. There was nothing in the Directive to suggest that employers might not arrange matters so that annual leave was taken during the school holidays or such similar industrial equivalent.

Giving the reasons for dismissing the further appeal, Lord Hope, Deputy President, with whom Lords Brown, Mance, Kerr and Wilson agreed, said that, under the Directive, every worker must be entitled to a rest break, a daily rest, and a weekly rest period.  Each period must be measured separately from each other. They cannot intrude upon each other or overlap. Where necessary because of special working patterns, workers must be afforded equivalent periods of compensatory rest. In the Appellants’ case, it was agreed that the first two days of each period of their field break is accounted for as compensatory rest, to make up for the fact that they work a 12 hour shift every day during their two weeks offshore. With regard to the annual leave entitlement, the Directive does not require that those four weeks must be taken consecutively or that those weeks cannot be interrupted. As, however, a period of leave is not a period which is defined as working time, it must be taken to be a rest period. It is an annual period of rest.

The Directive does not imply any qualitative requirement to test whether a given period can be accounted as rest. The exercise that must be carried out is simply one of counting up the relevant hours, days or seven-day periods and ensuring that the worker is not required to work during those periods. There is no indication anywhere that the Directive was concerned about the quality of the minimum periods of rest, other than to make it clear in the definition of ‘rest period’ that it means a period which is not working time.

The contract in question is a contract for the whole of the year, in which the employees were required to work for 26 weeks. The purpose of the entitlement to annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure. The ECJ has not said that a pre-ordained rest period, when the worker is free from all obligations to the employer, can never constitute ‘annual leave’. On the contrary, the term ‘rest period’ simply means any period which is not working time, and ‘any period’ means every such period irrespective of where the worker is at that time and what he is doing, so long as it is a period when he is not working. It is plain that any period when the Appellants are on field break onshore will fall into that category. The Respondents are therefore entitled to insist that the Appellants must take their paid annual leave during periods other than their 26 working weeks when they are onshore on field break. This is permitted by the Regulations, read in conformity with the Directive.

John Cavanagh QC of 11KBW and Sandy Kemp of Simpson & Marwick appeared for Transocean.



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