Sumsion v BBC Scotland (2007, IRLR 678)
Regulation 15 (2) of the 1998 Working Time Regulations (WTR) state that employers can require workers to take their annual leave on particular days, as long as they give them notice.
In Sumsion v BBC Scotland (2007, IRLR 678), the Employment Appeal Tribunal (EAT) held that there was nothing in the regulations restricting the days that employers could nominate as leave days.
Mr Sumsion’s union, BECTU, instructed Thompsons to act on his behalf.
Basic facts
Mr Sumsion was contracted to work for BBC Scotland as a standby carpenter from 5 May to 26 October 2003. His contract stated that he would be required to work up to six “turns” (or days) per week.
As 5 May was a Monday, his sixth working day was always a Saturday. In practice, however, he was only required to work every other Saturday and often only half a day on the Saturday that he did work. He was paid £1200 per week (or £200 per day).
At the beginning of September, Mr Sumsion asked to take the leave owing to him in one block. The BBC refused, stating that he could only take his leave in single days - on every second Saturday.
Mr Sumsion complained to a tribunal that the BBC was not entitled under the WTR to make use of Saturdays to meet their statutory obligation to give him holidays.
Tribunal decision
The tribunal, however, did not agree. It said that Mr Sumsion's contract required him to work six days a week, including Saturdays. As there was nothing in the regulations to stop the BBC from stipulating when he should take his holidays (nor how many days he could take at one time) provided it was during the span of the contract, his claim could not succeed.
Argument on appeal
Mr Sumsion appealed on the basis that the BBC was treating the days when he was not required to work (ie every other Saturday) as days of annual leave.
In effect, he said the BBC was trying to have its cake and eat it by deeming Saturday to be a day of work (when it was not) and then requiring him to take it as holiday.
He said employers should not be allowed to specify Saturdays and Sundays as holiday, unless the worker was physically required to work on those days. That should be the case even if the worker was contractually obliged to make themselves available for paid work on one or both of the days.
EAT decision
The EAT, however, agreed with the tribunal. It said that Saturday working was far from exceptional, and that there was nothing to stop employers under regulation 15 (2) from requiring workers to take their leave on that day.
Mr Sumsion’s contract clearly stated that he would be required “for up to six turns of duty per week”. The BBC could, therefore, have required Mr Sumsion to work six days a week, including Saturdays and he could have asked to take holiday on any Saturday during the period of his contract.
It said that his argument would mean that “on call” days (when a worker might not physically be at work) could not qualify as leave days. It also meant that employers would not be able to close their business and require their employees to take their leave at the same time. That would result in teachers, for instance, asking for statutory paid leave during term-time.
In any event, neither the regulations nor the parent directive prevented employers from stipulating in a contract that leave had to be taken in single days on certain Saturdays. Nor was there anything in the regulations restricting the days that employers could nominate as leave days.
It dismissed the appeal.