T.l. Russell And Others V. Transocean International Resources Limited And Others
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Emslie,Lord Eassie |
| Neutral Citation | [2010] CSIH 82 |
| Court | Court of Session |
| Published date | 19 October 2010 |
| Year | 2010 |
| Date | 19 October 2010 |
| Docket Number | XA69/09 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Eassie Lady Paton Lord Emslie | [2010] CSIH 82 XA69/09 XA71/09 OPINION OF THE COURT delivered by LORD EASSIE in the appeal under Section 37(1) of the Employment Tribunals Act 1996 by T. L. RUSSELL and OTHERS Appellants; against TRANSOCEAN INTERNATIONAL RESOURCES LIMITED and OTHERS Respondents: _______ |
Respondents: Michael Jones, Q.C.; Simpson & Marwick, W.S.
19 October 2010
Introductory
[1] The appellants in these appeals from a decision of the Employment Appeal Tribunal are all employed on offshore installations. Their cases constitute seven "sample" cases selected from a much larger number of complaints lodged with the Employment Tribunal[1] by others similarly employed. They were selected as sample cases with a view to resolving certain issues of principle arising under the Working Time Regulations 1998, as amended, - "WTR". The seven sample cases were heard by the Employment Tribunal sitting in Aberdeen between 8 October 2007 and 16 November 2007 when evidence was led from a large number of witnesses. The Employment Tribunal issued its decision on 21 February 2008.
[2] Five of the appellants in the sample cases are members of the trade union UNITE and have throughout been represented by counsel instructed by solicitors acting on behalf of that trade union. They are a Mr J. Price, Mr A. McGuire, Mr M. Burgess, Mr David Robertson and Mr Armand Sangbarani. The remaining two appellants are Avril Taylor and Michael Craig[2]. They are members of the OILC trade union and have similarly been legally represented throughout the proceedings but by a different legal team. While the appellants have different employers, those employers have instructed a single common representation throughout the proceedings.
[3] While a number of working time issues were canvassed before the Employment Tribunal, and to a much lesser extent the Employment Appeal Tribunal, the essential issue of principle in these appeals to this court concerns the provision to the appellants of the annual leave of four weeks to which it is accepted that they are entitled under Regulation 13(1) of the WTR.
[4] To put that issue into context at this stage it is necessary to set out some essentially undisputed facts respecting the offshore employment regime which was considered by the Employment Tribunal in the applications presented to it.
[5] With the exception of one appellant, Michael Craig, all of the appellants were employed on the general or customary basis in offshore employment of working offshore, on a platform or a rig, for two weeks and of thereafter having two weeks onshore, when, subject to a qualification to which we shall refer, the employee is off duty and may spend that time as he or she may choose. Such time onshore is referred to in the industry as "field-break". In the case of Michael Craig, a radio operator, he worked a roster of three weeks on and three weeks off. That distinction in his case is without any materiality to the issues canvassed before the court.
[6] Accordingly, subject to the qualification already mentioned, the appellants worked for 26 weeks in the year on their respective offshore installations; but for 26 full weeks of the year their time was their own. The qualification is that certain occasional activities connected to the worker's employment might take place during a field-break week. Those activities are training courses, appraisals, grievance and disciplinary hearings, medical assessment (which takes two hours and which employees undergo every two years) and offshore survival courses. It was accepted before the Employment Tribunal that for the purposes of the issues with which it was concerned those activities were de minimis.
[7] While working offshore on the installation, the working pattern was that of 12 hours on duty followed by 12 hours off duty. Within the limitations of living on an offshore installation, employees were free to do what they wished during the off-shift period. The Employment Tribunal, rejecting a contention advanced by the OILC claimants, held that the "off-shift offshore" time was not "working time" and hence constituted a "daily rest period" in terms of WTR. Before the Employment Appeal Tribunal that issue was not pursued, after it was conceded by counsel instructed for the OILC claimants that, even if it were the case that the contention had been wrongly rejected by the Employment Tribunal, the temporal extent of field-break was such as to allow for both annual leave and any compensatory rest. That issue was thus not the subject of any ground of appeal in the appeal before this court, and the concession before the Employment Appeal Tribunal was adhered to by counsel instructed in the appeal to this court. In those circumstances the court resolved at a prior hearing that the issue whether "off-shift offshore time" constituted "working time" should not be reopened at the sole instance of the appellants in the OILC appeals.
[8] Thus, given the acceptance that during the annual 26 weeks of field-break there was sufficient free time available to the employee even after allowing for the OILC contention on compensatory rest and the occasional, employment related, activities referred to in paragraph 6 supra (training courses, medical assessments etc.) to meet the provision of four weeks of free time by way of annual leave, the question for decision is whether the appellants' entitlement to a minimum of four weeks' paid annual leave could be satisfied by the provision to them of 26 weeks of field-break in which they were not required to perform any work (subject to the de minimis matters already mentioned). The employers - the respondents - contend that it could be so satisfied. The employees - the appellants - contend that it could not, and that they were entitled to be free from attendance for duty on four of the 26weeks for which they would otherwise be rostered for work on the offshore installation. Put in other words, they submit that they should only have 22 weeks of actual work on the offshore installation; they should have 30 weeks onshore, the extra four weeks representing time in which they would otherwise have been rostered for duty.
[9] The Employment Tribunal found in favour of the appellants. Its conclusion is to be found in paragraph 300 of its judgment:
"It follows ... that 'leave' in Regulation 13 [WTR] involves 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'. That is what both the Court of Appeal in Ainsworth and Lady Smith in the EAT in Sumsion regarded as the natural meaning of the word 'leave'. We therefore conclude that for the present cases the claimants have not been granted their entitlements to annual leave under Regulation 13 of the WTR."
In its judgment the Employment Appeal Tribunal referred to that conclusion in paragraph 64 of its judgment and further summarised it as being to the effect that annual leave required to be taken out of the time when the employee would otherwise have been working offshore. It noted that the respondents' submission that annual leave was provided during field-break was found by the Employment Tribunal as flawed because the claimants were not required to work during that period. In paragraph 65 and following paragraphs of its judgment the Employment Appeal Tribunal examined the process whereby the Employment Tribunal arrived at its conclusion. By a majority the members of the Employment Appeal Tribunal disagreed with the Employment Tribunal. The essential basis of the majority view is set out in paragraph 130 of the Employment Appeal Tribunal judgment:
"130. In all these circumstances, the majority of us conclude that the claimants' argument is without merit. The time conceded to be available in the field-breaks is not working time nor is it compensatory rest. Further, during that available time, the claimants are free of all and any actual work obligations and not subject to the possibility of being called on to work. It is a rest period and is a rest period during which none of the three criteria involved in the definition of working time in the WTD and WTR apply actually or potentially. It is time that is available for annual leave; it is available to afford to the claimants the rest from work which the WTD and WTR seek to achieve. It does not matter that, because of the working patterns in the industry, the claimants would not otherwise be working during those periods. The Tribunal came close to realising as much in recognising that there was a circularity to their own argument. Unfortunately they became deflected by wrongly thinking that field-break could not be used for leave because the claimants would not otherwise have been working during it."
The legislative texts
[10] The WTR constitute the legislative measure whereby the United Kingdom seeks to implement certain European directives "on the organisation of working time".
[11] The first such directive was EC Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time [OJ 1993 No. L307, p. 18]. It excluded from its ambit offshore working, but by a later directive in 2003 the 1993 Directive was amended in certain respects which included bringing offshore working within its scope. In view of the various amendments made to the original directive there was then enacted an essentially consolidating directive, viz Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time [OJ 2003 No. L299 p. 9]. With a view to reflecting those developments in the implementing legislation in the United Kingdom, the original WTR was amended by certain statutory instruments.
[12]...
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