Holiday: Employer entitled to insist that offshore employees take annual leave during periods when they would not normally be working

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.

For further information on this article please contact Adam Williams adam.williams@dmhstallard.com or T: 020 7822 1587

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