In what, at first glance, seemed a surprising decision, the EAT held that in a weekly-based employment relationship, an employer could legitimately make use of Saturdays to meet his statutory obligation to provide annual leave under regulation 13 of the Working Time Regulations 1998. However, the claimant who worked for BBC Scotland was required to work six days each week, there were clear contractual provisions setting out the working pattern and that a certain number of annual leave days would be taken on the 6th non-scheduled working day. Pay was calculated on the basis of a six day working week
The EAT held that the regulations did not restrict an employer in his right to stipulate the days when annual leave could be taken and there was no breach of the Working Time Regulations. Employers are free to designate certain days, such as Saturdays, as statutory holiday provided that they follow the procedure in regulation 15(2) which provides that the employer may give notice requiring the worker to take leave on particular days in respect of all or part of the annual leave entitlement. Such notice should be given to the worker twice as many days in advance of the earliest day specified in the notice as the number of days to which the notice relates. The procedure allows employers to prescribe periods of annual shutdown or school holidays as satisfying their statutory requirement to allow employees to take annual leave.
It is unlikely that an unscrupulous employer who sought to re-categorise a five day week as a six day week with no adjustment to salary would succeed in designating every Saturday as a day of leave in satisfaction of the annual leave entitlement, but this concern was raised on behalf of the claimant. In this case, it was clear that the employee was genuinely paid to work a six day working week and the claimant was being released on Saturdays from his obligation to be available for work. (Sumsion v BBC Scotland)