Employer not prevented from designating Saturdays as annual leave

Sumison v BBC Scotland (Employment Appeal Tribunal – March 2007)

Mr Sumison was on a 24 week contract with the BBC as a carpenter. He had to be available for work six days a week (Monday to Saturday). The Working Time Regulations 1998 (WTR) entitled him to roughly two weeks leave during the fixed-tem. As such the BBC required that leave be taken on every other Saturday, regarding it as a non-scheduled production day. If the production schedule required Mr Sumison to work on a holiday Saturday he was allowed another day off in lieu.

Mr Sumison wanted to take his leave in one block before the end of the contract but this request was refused. He claimed that the BBC had failed to provide for his entitlement to annual leave under the WTR by stipulating a day which would not have been a working day (i.e. a non-scheduled production day) as an annual leave day.

The Employment Tribunal rejected the claim because the contract required Mr Sumison to work six days a week and there is no provision in the WTR which restricts an employer’s right to stipulate when leave must be taken, provided that a worker is contracted to work for those days.

In his appeal to the Employment Appeal Tribunal Mr Sumison argued that Saturday was not traditionally a working day. The BBC argued that Mr Sumison was being paid to work Saturdays even if it was a non-production day and therefore the request for holiday at another time would represent a “windfall” for Mr Sumison.

The Employment Appeal Tribunal said that working on a Saturday could not be regarded as an exception rather than a rule. While some arrangements including a Saturday could be construed as a sham if not properly constructed this was not the case here. There is nothing that prevents leave under the WTR to be taken in single days, including Saturdays and the appeal was dismissed.

As Saturdays were contracted days in this case then they could not be treated any differently to the other contracted days. To do so would mean that an employer could not stipulate when holidays should be taken in cases where an operation closes down to give all workers leave at the same time e.g. school holidays or “factory fortnights”.