Russell and others v Transocean International Resources Limited [2011] UKSC 57
The Supreme Court has held that it is not necessary for annual
leave to be taken at a time when the employees would otherwise be
at work. This case involved employees who worked a pattern of four
weeks offshore followed by a four week period of onshore home
leave. The Court identified any period of time when the workers
were onshore as a "rest period" (a period that was not
working time and where they were free from working commitments). On
that basis, the time spent onshore could be used as part of the
workers' annual leave entitlement. The employer's
requirement that the employees take their annual leave during the
time they were onshore fulfilled their obligations under the
WTR.
The Supreme Court pointed out that the Court of Justice of the
European Union 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 within the meaning of the WTR. It referred
to the case of teachers in non-term time as an example, where the
period when annual leave can be taken had already been designated
by the employer, and came to the conclusion that the employer was
entitled to insist the employees take their paid annual leave
during their time onshore.
The Supreme Court stated the quality of the rest periods does not
determine whether the minimum requirements under the WTR have been
satisfied. It focused on the purpose of the entitlement to annual
leave, that is to enable workers to rest and enjoy a period of
relaxation and leisure. On this analysis, the time onshore
fulfilled the purpose as a rest period and could therefore
constitute annual leave.
Implications
The decision leaves important questions unanswered.
It suggests that it is theoretically possible for an employee
working five days a week Monday to Friday (with Sunday being
treated as the required weekly rest period) to be required by their
employer to take annual leave on Saturdays. This would arguably
have the effect of lawfully circumventing the intended effect of
the WTR's annual leave provisions. Whilst the case of
Sumison v BBC (Scotland) [2007] IRLR 678 indicated that
such a scenario would be an abuse, it is unfortunate that the
Supreme Court did not make a decision on the issue or give some
indication of the circumstances in which a "Transocean"
approach is permissible.
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