The Employment Appeal Tribunal (EAT) has reversed the Aberdeen employment tribunal’s decision relating to the holiday entitlement of offshore workers.
Hundreds of employees working on offshore installations issued proceedings against their employers claiming that they were not receiving their annual leave entitlement under the Working Time Regulations 1998 (WTR).
In March, 2008, in Craig & ors v Transocean & ors, seven “sample” cases were eventually heard by the Aberdeen employment tribunal as being representative of the different forms of offshore working patterns.
The tribunal decided that offshore workers were entitled to paid annual leave under the WTR proportionate to the time spent working offshore, and that “field break” could not count as holiday under the WTR given the pattern of work and terms of employment in the industry. The employers appealed against this decision.
The EAT considered two issues under the appeal. Firstly, whether the employers had given effective notice required under the WTR that annual leave would have to be taken during field break, and secondly, whether time off during onshore field break can ever constitute annual leave.
Under the first issue, the EAT held that the employers had, in fact, already, in terms of the workers’ contracts of employment, given effective notice that annual leave should be taken during field breaks. Furthermore, the fact that the employers refused the workers’ requests for leave during offshore time also intimated to them that their employers required leave to be taken during field breaks. The EAT concluded that such notices were sufficient under the requirements of the WTR.
The most important part of the appeal was to establish whether time off during onshore field break could ever constitute annual leave. The employers argued that the oil industry happened to have called the onshore time “field break” and that they could, equally, have called it “leave”. Time off during field break was “real” and provided a genuine break from work. The employers were not in breach of their WTR obligations.
The workers submitted that annual leave could not be taken out of field break because this was a period during which they would not otherwise be working and annual leave should be taken out of working time.
By a majority, the EAT held that the employee’s argument was without merit. In reaching this decision, the EAT observed that time available in the field breaks is not working time, nor is it compensatory rest. It did not matter that, because of the working patterns in the industry, the employees would not otherwise be working during those periods. Furthermore, during such time, the workers are free of all work obligations; it is time that is available for annual leave and is available to afford to the workers the rest from work which the WTR seek to achieve.
The EAT therefore held that annual leave for offshore workers can be taken out of onshore “field breaks” provided that the employer follows the requisite notice process under the Working Time Regulations 1998.
It is clear from this appeal that employers of offshore workers should ensure that employees are given notification in advance of the beginning of each leave year, either expressly in their contracts of employment or on an annual basis that leave must be taken during field breaks. The alternative is for employers to reach collective agreements with trade unions or workforce agreements about the taking of holiday.
Penelope Warne is a partner and practice group manager for energy projects and construction at CMS Cameron McKenna
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