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On appeal from: [2010] CSIH 82

Concerns the right to a minimum period of annual leave under art 7 of the EC Working Time Directive (EC 93/104) (“WTD”) (and implementing legislation, the Working Time Regulations 1998, SI 1998/1833 (“WTR”)). Art 7 obliges Member States to ensure that workers are entitled to four weeks’ annual leave. The appellants worked on offshore oil rigs. The net result of their working pattern was that they were on field break for approximately 26 weeks per year, when they were under no obligation to work. The appellants argued that their statutory entitlement to annual leave could not be satisfied by the 26 weeks’ field break, but rather had to be taken from the 26 weeks when they were due to be offshore and undertaking work.

Held: unanimously refusing the request for a reference to the CJEU, and dismissing the appeal.

Under the WTD, every worker must be entitled to a rest break, a daily rest, and a weekly rest period. Each period must be measured separately from each other. Where necessary because of special working patterns, workers must be afforded equivalent periods of compensatory rest. In the appellants’ case, it was agreed that the first two days of each period of their field break was accounted for as compensatory rest, to make up for the fact that they worked a 12 hour shift every day during their two weeks offshore.

With regard to the requirement for annual leave; a period of leave must be taken to be a “rest period” under the WTD, as it was not a period defined in art 2 as “working time”. There was no indication anywhere that the WTD was concerned about the quality of the minimum periods of rest, other than to make it clear in the definition of “rest period” that it meant a period that was not working time. The CJEU had not said that a pre-ordained rest period, when the worker was free from all obligations to the employer, could never constitute annual leave. On the contrary, the term “rest period” simply meant any period that was not working time, and “any period” meant every such period irrespective of where the worker was at that time and what he was doing, so long as it was a period when he was not working. The respondents were entitled to insist that the appellants must take their paid annual leave during periods when they were onshore on field break. This was permitted by reg 13 of the WTR, read in conformity with art 7 of the WTD.

For judgment, please download: [2011] UKSC 57
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