Russell and others v Transocean International Resources Limited and others

Paid annual leave under Working Time Regulations 1998 may be taken during a pre-arranged period when the worker is free from work obligations. Leave need not release the worker from an obligation which would otherwise have arisen.

For the purposes of the working-time regime, a rest period is any period which is not working time. Compliance ordinarily depends on counting the prescribed hours, days or seven-day periods, rather than assessing the quality of the rest. An employer may therefore require offshore workers to take annual leave during onshore field breaks, provided the applicable notice requirements and minimum entitlements are observed.

The appellants worked on offshore oil and gas installations, generally following alternating periods of two weeks offshore and two weeks onshore. They worked 12-hour shifts throughout each offshore period but were ordinarily free from work obligations during their onshore field breaks.

The employment tribunal held that annual leave under regulation 13 of the Working Time Regulations 1998 had to release a worker from an obligation to work. The Employment Appeal Tribunal reversed that decision. The Inner House refused a further appeal: [2010] CSIH 82; 2011 SC 175.

The central issue was whether paid annual leave could be taken during field breaks, although the appellants would not otherwise have been required to work during those periods.

1. Appeal dismissed unanimously. Lord Hope delivered the judgment, with which Lord Brown, Lord Mance, Lord Kerr and Lord Wilson agreed. The respondents could require the appellants to take paid annual leave during their onshore field breaks. That arrangement was permitted by regulation 13 of the Working Time Regulations 1998, interpreted consistently with article 7 of Directive 2003/88/EC.

2. The Directive establishes minimum periods of rest within daily, weekly and annual cycles. Separate daily and weekly entitlements cannot overlap. Annual leave, however, need not be consecutive or uninterrupted because article 7 contains neither qualification. The conditions governing when leave may be taken are left to national legislation or practice.

3. A rest period under article 2 is any period which is not working time. The Directive imposes no additional test based on the quality of the worker's rest. Its requirements are ordinarily applied by counting the relevant hours, days or seven-day periods and ensuring that the worker is not required to work during them. A pre-arranged period free from all obligations to the employer can therefore constitute annual leave.

4. The appellants remained employed throughout each year. Their repeating shift pattern limited working time to offshore periods but did not turn their contracts into contracts for only 26 weeks. Their field breaks were genuine periods of rest and relaxation. No evidence suggested that the arrangement adversely affected their health or safety.

5. Regulation 15 permits an employer, subject to its notice provisions, to designate the dates on which annual leave must be taken. Nothing in the Directive prevents annual leave from being designated during periods when the worker would not otherwise work. Different considerations might arise if an employer fragmented the entitlement into individual non-working days so that no whole week of leave remained. Lord Hope considered there was much to support the view that an employer could not compel such fragmentation, but reached no concluded view.

6. No reference to the Court of Justice was required. The meaning of article 7 necessary to decide the appeal was clear from the wording and structure of the Directive and was not subject to reasonable doubt. The interlocutor of the Extra Division of the Court of Session was affirmed.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously and the interlocutor of the Extra Division was affirmed: [2011] UKSC 57.
2. Inner House of the Court of Session: The Extra Division refused the appeal and remitted outstanding issues to the Employment Appeal Tribunal: [2010] CSIH 82; 2011 SC 175.
3. Employment Appeal Tribunal: By a majority, the tribunal's finding that annual leave could not be taken during field breaks was set aside: [2009] IRLR 519.
4. Employment tribunal: The tribunal held that leave required release from an obligation to work and that field breaks did not constitute annual leave. It confirmed that conclusion on review.