Offshore workers in the oil and gas industries generally work on a ”two weeks on, two weeks off” shift basis.
In Russell & Ors v Transocean International Resources Ltd & Ors (Scotland), offshore workers, whose contracts required that they take their leave during periods when they were ashore, unsuccessfully sought to establish that they were entitled to take their statutory annual leave under the Working Time Regulations 1998 (WTR) at times when they would otherwise be offshore.
The competing representations were succinctly summarised by Lord Hope as follows:
The appellants say that “annual leave”, properly construed, means release from what would otherwise have been an obligation to work, and that the employers cannot discharge their obligation to provide them with annual leave by insisting that they take this during periods of field break. Their periods of field break, they say, is their time. It is not their employers’ time, and they insist that it is the employers’ time out of which the annual leave should be taken. The respondents say that the time spent onshore is in itself a rest period, as it is not working time. And they point out that it is substantially more than the minimum of four weeks’ annual leave to which the appellants are entitled under the WTR. Their case is that the requirements of the WTR are more than satisfied already, and there is no need for the appellants to take annual leave out of the periods spent offshore.
The Supreme Court held that their employers were perfectly entitled to insist that they take their paid annual leave at times when they were onshore and free of work commitments. There was nothing in the Regulations that prevented a “pre-ordained rest period” being used for annual leave, and this would still fully satisfy the health and safety purpose of the Regulations.
The decision has ramifications for other areas of employment, since the same approach could be applied to any employee who routinely has periods when they are at work, and periods when they are not – for example teachers, who are usually required to take their annual leave during school holiday periods.
