Well rested

Craig and ors v Transocean International Resources Ltd and ors

The 1998 Working Time Regulations (WTR) state that all workers have a right to four weeks’ annual paid leave. In Craig and ors v Transocean International Resources Ltd and ors, the Employment Appeal Tribunal (EAT) held that rostered time off could be designated by the employer as annual leave as it was time when the employees would not be working, nor was it compensatory rest.

Basic facts

Mr Craig and his colleagues all worked on offshore installations and were rostered to do two weeks offshore followed by two weeks onshore. The latter were called field breaks. During this time they could do what they wanted, apart from having to attend occasional medical appointments and training courses.

The claimants all asked to take leave during a period when they were rostered to work offshore. When Transocean refused (arguing that holiday had to be taken during field breaks), the workers claimed that that they had been denied their statutory entitlement to four weeks' holiday. The Working Time Regulations 1998 were only extended to the offshore industry in 2003.

Tribunal decision

The tribunal concluded that the field break was just part of the workers’ normal working pattern and was not, therefore, holiday.

It reasoned that every worker has periods of non-work, the most obvious example being the Monday – Friday worker, for whom Saturday would be the weekly rest period, leaving Sunday “undesignated in WTR terms”.

The logic of the employers’ position, it concluded, “would be to regard each Sunday as part of annual leave, thus affording 52 separate days of leave per annum which in total is in excess of four weeks. Thus, it would be said such a worker has no further entitlement and would never then be released from any day of his scheduled work to take leave.”

Instead, it said that a worker’s entitlement to rest breaks, rest periods and annual leave had to genuinely provide a break from “……. what would otherwise be an obligation to work or be available to work.”

If rest periods and annual leave were mutually exclusive concepts under the regulations, then if a period was a rest period it could not be annual leave.

EAT decision

The EAT disagreed. It said that “although the labelling may vary from contract to contract, it is clear that the field breaks are free time, not working time and (subject to such training courses and appointments as are required) the claimants are free to use the time during the field breaks as they choose. They are certainly available for the claimants to use as rest periods and they amount to rest periods which, even after allowing for compensatory rest training and appointments, exceed the minimum annual leave provided for” under the regulations.

It went on to say that it did not matter that “because of the working patterns in the industry, the claimants would not otherwise be working during those periods. The tribunal came close to realising as much in recognising that there was a circularity to their own argument. Unfortunately they became deflected by wrongly thinking that a field break could not be used for leave because the claimants would not otherwise have been working during it”.

Regulation 15 of the WTR allows an employer to require an employee to take leave on particular days having given appropriate notice. These provisions are commonly used for teachers who have to take their holidays outside term time and parts of manufacturing industry where there are annual shut downs. By the same token the offshore employers could say that WTR holiday had to be taken during field breaks.