Requiring employees to take statutory annual leave when not required to work

The Supreme Court has decided that an employer could insist that employees take their annual leave during their “field-breaks” which were spent onshore.

Background and facts

Under the Working Time Regulations (WTR), employers are entitled to require workers to take leave, or not to take leave, on certain days subject to the giving of notice to the worker.
In this multi-claimant and multi-respondent case, the employees worked on offshore oil and gas installations. The vast majority of claimants followed the industry custom of working on an offshore rig for two weeks and then spending two weeks onshore. The time spent onshore is known in the industry as a “field-break”.

The employees had minimal work-related activities during field-breaks and were not contractually required to carry out any duties.

The employees requested annual leave during their offshore working periods but were refused.

The Supreme Court had to consider whether the time that employees spent onshore should count towards the employees’ annual leave under the WTR.

Decision

The WTR provide for minimum rest periods consisting of daily rest, weekly rest and annual leave. The employees argued that “annual leave” meant a release from what would otherwise be an obligation to work. Therefore, the WTR required the employer to permit employees to take annual leave during periods when they would otherwise be required to work on an offshore installation.

The employers contended that the time spent offshore was a rest period since it was not “working time”. Since the time spent onshore, some 26 weeks a year, was substantially more than the minimum four weeks’ statutory leave entitlement under the WTR, there was no need for the employees to take annual leave out of the periods spent offshore.

The Supreme Court agreed with the employers and unanimously decided that they could insist that the employees take their paid annual leave during their onshore field-breaks. The Supreme Court decided that a “rest period” is 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. Therefore, the employers were entitled to insist that the workers take their paid annual leave during onshore field-breaks.

Comment

The Supreme Court’s decision will be welcomed by employers of atypical workers. The decision goes beyond applying to just oil and gas offshore workers. For example, it may well apply to employees on annualised hours contracts, seasonal workers or workers in the education sector (where staff are required to work on a term-time only basis).
The Supreme Court refused to make a reference to the European Court of Justice and therefore this is likely to be the final say on the matter.