Russell and Others v Transocean International Resources Ltd and Others
| Jurisdiction | Scotland |
| Judge | LORD HOPE,LORD BROWN,LORD MANCE,LORD KERR,LORD WILSON |
| Judgment Date | 08 December 2011 |
| Neutral Citation | [2011] UKSC 57 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 9 |
| Date | 08 December 2011 |
[2011] UKSC 57
Lord Hope, Deputy President
Lord Brown
Lord Mance
Lord Kerr
Lord Wilson
Appellant
Thomas Linden QC
Peter Edwards
(Instructed by Thompsons Solicitors)
Respondent
John Cavanagh QC
Sandy Kemp
(Instructed by Simpson & Marwick)
Heard on 26 and 27 October 2011
LORD HOPE (WITH WHOM LORD BROWN, LORD MANCE, LORD KERR AND LORD WILSON AGREE)
This appeal is about the application of the annual leave provisions of the Working Time Regulations 1998 (SI 1998/1833) ("the WTR") to offshore workers in the oil and gas industry. Employers differ in the way they organise their employees' working time. The familiar pattern of working from 9am to 5pm five days each week throughout the 52 weeks of the year, with a few weeks taken from that commitment for annual holidays, is by no means uniform. For some, the nature of the job requires them to work for longer hours during each working day and to be given more days off during the working week to compensate. For others such as teachers and others who work in the education sector, the working pattern has to take account of the fact that the organisation for which they work is open for some periods of the year and is closed for others. The appellants in this case work offshore, so their working pattern is divided into time spent working offshore and time spent onshore when, by and large, they are not working. The only unifying factors in what is, after all, an infinite variety are that the way in which a worker's time is organised is a function of the nature of the job itself, and that in the interests of health and safety workers must be given some time off to rest.
The WTR contain the provisions that currently provide for rest periods in domestic law. They were designed to implement Council Directive 93/104/EC. The 1993 Directive was repealed by Council Directive 2003/88/EC concerning certain aspects of the organisation of working time ("the WTD"). It consolidated the 1993 Directive and a subsequent amending Directive and took effect as from 2 August 2004. Among the aspects of the organisation of working time that are the subject of rules in the WTD are minimum rest periods. They are set out in chapter 2. As it is concerned with laying down what are described as minimum requirements, the provisions which it contains adopt for the most part a one size fits all approach. There is scope for derogation in particular cases, and there are special rules for mobile workers, those engaged in offshore work and workers on board seagoing fishing vessels. But there is no attempt, either in the WTD or the WTR, to identify particular patterns of working and legislate for them individually. It is for the judiciary, in the event of a dispute, to work out how its requirements are to be applied in particular cases
The problem in this case is how the statutory right to paid annual leave under the WTR is to be applied to offshore workers in the oil and gas industry. Typically they work a two weeks offshore and two weeks onshore (known as "field break") shift pattern. Some work three weeks offshore and three weeks onshore, and some work two weeks offshore and three weeks onshore. But nothingturns on these differences. The central issue is whether the period spent onshore should count towards the workers' entitlement under regulation 13 of the WTR to what, when the appellants made their claims, was to four weeks paid annual leave. That entitlement has now been increased by an amendment to the WTR to 5.6 weeks, by adding 1.6 weeks to take account of Bank Holidays: regulation 13A, inserted by regulation 2(1)(2) of the Working Time (Amendment) Regulations 2007 (SI 2007/2079). But nothing turns on that point either in this case.
The appellants say that "annual leave", properly construed, means release from what would otherwise have been an obligation to work, and that the employers cannot discharge their obligation to provide them with annual leave by insisting that they take this during periods of field break. Their periods of field break, they say, is their time. It is not their employers' time, and they insist that it is the employers' time out of which the annual leave should be taken. The respondents say that the time spent onshore is in itself a rest period, as it is not working time. And they point out that it is substantially more than the minimum of four weeks' annual leave to which the appellants are entitled under the WTR. Their case is that the requirements of the WTR are more than satisfied already, and there is no need for the appellants to take annual leave out of the periods spent offshore.
As the appellants point out, the issue that this dispute raises is important not just for the parties themselves. It has significant implications for other parts of the labour market. We cannot resolve all the problems that may possibly arise in this case. But the answer to the dispute has to take account of the fact that the WTD, and the WTR which give effect to it, have been designed to apply to the labour market generally.
It will be necessary to examine the WTD and the WTR in more detail later. For the time being it is sufficient to note that article 7 of the WTD provides that member states shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks. This is to be in accordance with conditions laid down by national legislation and/or practice. Regulation 13(1) of the WTR gives effect to this requirement. It provides that a worker is entitled to four weeks' annual leave in each leave year. Regulation 15 contains provisions about how the days when this is to be taken are to be worked out between the worker and the employer, if this has not already been agreed, by a system of notices and counter-notices.
The appellants' cases are seven sample cases which have been selected from a much larger number of similar complaints that were lodged with the employment tribunal. They were all employed to work in various capacities on offshore installations located in the United Kingdom Continental Shelf. There were differences in the way their contracts were expressed as they were working for different employers, but it was agreed that nothing turns on these details. With the exception of Mr Craig, the appellants were contracted to work to a pattern of two weeks offshore with a period of field break for two weeks onshore. Mr Craig was contracted to work three weeks offshore followed by three weeks onshore. Whilst offshore the appellants generally worked, and still work, a 12 hour shift each day during which rest breaks are 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.
Part of the time during which the appellants were on field break was occupied in travelling to and from the installation and Aberdeen airport by helicopter, and to and from home once they were onshore. During the periods of field break the appellants attended occasional events that could only be undertaken onshore, such as training courses, appraisals, grievance and disciplinary hearings, medical assessments and offshore survival courses. But it is agreed that these occasional activities are of no significance for present purposes. For the most part the appellants were free from work-related obligations during the entire period of their field breaks. They could spend their time as they chose.
The appellants issued proceedings in the employment tribunal at Aberdeen in which they contended that the relevant provisions of the WTR required the respondents to permit them to take four weeks paid annual leave from periods when they would otherwise be required to work on the offshore installation. The respondents maintained that the paid annual leave entitlement was discharged by two weeks onshore within the shift pattern. In a long and careful judgment, which covered various other issues with which we are not concerned and was sent to the parties on 21 February 2008, the employment tribunal held that "leave" in regulation 13 of the WTR involved a release from what would otherwise have been an obligation to work, or at least to be available for work or otherwise in some way on call: para 300. So the field breaks were not to be regarded as annual leave for the purposes of the regulation, although they might provide periods of compensatory rest for the purposes of regulation 24 to the extent required: para 310 (xxviii).
In a review judgment dated 1 December 2008 the tribunal confirmed that, in its view, a worker is entitled to exercise his or her right to paid annual leave underregulation 13 at such times as he or she would otherwise be obliged to work or be available to work. In the case of a worker whose pattern of work was to work for two weeks followed by two weeks' break from work, the entitlement to paid annual leave amounted to two weeks to be taken from time when he or she would otherwise be working. It had already explained in para 308 of its judgment the calculation on which this conclusion was based and which is not now in dispute. The number of days worked during each period of 28 days was 14 days, which amounted to an average of three and a half days a week. This produced an annual leave entitlement of 14 days. The number of hours worked each day made no difference.
The tribunal's finding that the respondents had refused to permit the appellants to exercise their right to paid annual leave because this could not be taken out of field...
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