The Working Time Regulations not only determine the amount of annual leave to which an employee is entitled, but also set out how that leave can be taken. The leave can be taken in instalments or all at once pursuant to Regulation 13 (9) and an employer can give notice to a worker that leave must be taken on a particular day or days (Regulation 15 (2)). In a recent case, (Sumsion v BBC Scotland (21 March 2007)) the EAT considered whether an employer could require an employee to take leave on a Saturday on which he would not otherwise have been at work.
In this case the employee was employed by the BBC on a contract which provided that he must be available for work six days per week. It provided for leave to be taken unless otherwise agreed on any six non-scheduled days in a week. The sixth day was taken to be a reference to Saturday. The employee asked to take his leave in one block before the end of his contract expired, but this was refused. He then brought a claim under the Working Time Regulations claiming that the employer had failed to afford him his entitlement to annual leave. The employment tribunal held that there was no provision in the Working Time Regulations which restricted an employer’s right to stipulate when leave must be taken provided that those were days when the worker was otherwise contracted to work for the employer. The employee appealed on the basis that Saturday was not generally a working day and that the employer could not legitimately deem Saturday to be a working day when in reality it would not otherwise have been.
The EAT dismissed the employee’s appeal. It agreed that had the contract required the individual to work five days a week which had not included a Saturday but the employer had then varied it to require the individual to be available for six days purely in order to designate Saturday as a day’s holiday, the arrangement would have been a sham. However, in this case, the employee was already paid for the Saturday, but was looking for a further “windfall” payment for every leave Saturday in addition to what he had already been paid for those days.
This particular case turned on the fact that the employment contract required him to work on Saturdays and there was no right for an employee to have a weekend off. It also makes it clear that an employer can require a worker to take leave in single days and that any day on which the worker could (apart from leave) be required to work could be designated a days leave under the Working Time Regulations. In effect, it is no different from schools requiring teachers to take their statutory annual leave during holiday time.