When deciding rights of accrual with regard to paid annual leave for seafarers, the Employment Appeal Tribunal (EAT) has held in Hayford and Biddle v P&O Ferries (Jersey) Ltd that they accrued leave entitlement during non-rostered periods as well as when they were working on the vessel. As such they had been accorded their full statutory rights to paid leave.
The two claimants – Ms Hayford and Mr Biddle - worked as assistant stewards on a ferry sailing between Dover and Calais. Ms Hayford was employed from 2003 to 2017 while Mr Biddle’s dates of employment ran from 2012 to 2017. In any given year, they each had a certain number of weeks during which they were rostered to work on the vessel, and a certain number of weeks when they were not rostered and on shore.
From March 2014, regulation 12 of the Merchant Shipping (Hours of Work) Regulations 2002 gave employed seafarers the right to paid annual leave calculated on the basis of two and a half days per month plus paid leave of eight days in each leave year, giving a total of 38 days (12 x 2.5 + 8).
Ms Hayford submitted a claim in December 2017 that her regulation 12 rights had not been fully honoured in respect of the period from March 2014 to her date of termination in that she had only been given her contractual entitlement of 12.5 days paid leave per year. Mr Biddle (who submitted his claim in March 2018) argued that he had only been allowed to take 14 days per year of his 28 days’ contractual annual paid leave entitlement during rostered time, the remainder during times when he was not rostered.
The company argued that employees’ working patterns meant they could take their leave during non-rostered time as they were paid annual salaries in equal portions every month whether or not they were at work. As Ms Hayford, who worked part time, was “not working for the vast majority of the year” and Mr Biddle was “not working for most of the year”, they had both been accorded their statutory rights.
Dismissing the claims, the tribunal held that the company provided entitlement for annual leave during periods when the two claimants were not rostered to work. It concluded therefore that, given their working patterns, the number of days when they were not rostered greatly exceeded their leave entitlement under the regulations no matter how it was calculated. As such, they had both been able to exercise their right to annual and additional leave under regulation 12.
The claimants appealed against the decision that they accrued annual leave throughout their employment, among other things.
The EAT agreed with the tribunal that both claimants accrued leave entitlement during non-rostered periods as well as when they were working on the vessel. It was therefore right to conclude that, given the number of weeks in which each of them was not rostered, they had both been accorded their full statutory rights to take leave.
It also held that both claimants had been paid their full statutory pay in respect of the statutory annual leave that they had accrued because they each received an annual salary which was divided into equal monthly instalments throughout the year. This was not affected by the fact that the contractual leave provision was less generous, nor by provisions within their contracts that provided for standard annual hours of work and supplemental payments based on an hourly pay rate.
The decision, though harsh on the claimants, followed the reasoning of the decision in Harpur Trust v Brazel (weekly LELR 641) which considered how to calculate holiday pay for a “part-year” worker on a permanent contract.