We reported in October 2010 that the Inner House of the Scottish Court of Session had held, in T.L. Russell & ors v Transocean International Resources Limited & ors, that annual leave for offshore workers could be taken out of onshore ‘field breaks’, thus following the earlier ruling of the Employment Appeal Tribunal (“EAT”). But, one year on, the saga continues.
On 27 and 28 October 2011, the Supreme Court will have its opportunity to consider the arguments. By this time, the dispute will have been running for several years, with the original tribunal having taken place in Aberdeen in 2007. This issue has become an expensive and divisive one for the industry, and even before the doors of the Supreme Court open next week, we have early indications that a further detour on this particular trip may yet be required to the European Court of Justice.
The Issues in Dispute
At the heart of these cases is the question of whether an ‘equal time’ rotation, whereby workers have (typically) a two or three week working period offshore, followed by an equal period of leave or ‘field break’, complies with the obligation to provide a minimum period of holiday under the Working Time Regulations 1998 (“WTR”). At the time the dispute commenced, this was a four week entitlement, but the last government increased this to 5.6 weeks (a maximum of 28 days) in recent years.
The unions argue that WTR can only be complied with where the leave is provided from time that would otherwise be working time i.e. offshore time for these workers. The Court of Session did not accept this, and further ruled that the only requirement under WTR was that annual leave did not come out of time which would otherwise be a ‘rest break’. The Court, being satisfied that this rest concept should be interpreted narrowly, confirmed it is quite legitimate for an employer to require leave to be taken on certain days but not others in the way the offshore employers had done by requiring leave to be taken in field break. Within the onshore period, there was, it was confirmed by the Court, ample time both for ‘rest’ under WTR and annual leave.
Permission to appeal this ruling was granted, and we must now await the view of the Supreme Court. Through this process the unions may seek to explore further a note of caution expressed by the Court of Session in its judgment, “We do not see the provisions of regulation 15(2) [of the WTR] as enabling an employer (against the wishes of the employee) to controvert the fundamental entitlement to … annual leave by stipulating that non-working days within the weekly working cycle (typically Saturdays and Sundays) must be treated as annual leave.” Further, it is possible that an application may be made for one or more questions to be referred to the European Court of Justice, on the basis that the correct answer may lie in the appropriate interpretation of the Working Time Directive. In that event, a final answer may be some time off.
The outcome in this case will clearly be important for the offshore oil and gas industry, but will additionally be of interest to all those sectors in which work is compressed, for example in education. A further law-now update will be issued on release of that decision in due course.