THERE was a huge amount at stake for the industry – an estimated £50million per year in additional holiday pay entitlement.
That explains why litigation involved a preliminary hearing, a full employment tribunal hearing, two appeals to the Employment Appeal Tribunal, an appeal to the Court of Session in Edinburgh, and a final appeal to the Supreme Court in London.
In their judgment, the five Supreme Court judges unanimously concluded that the law was not an ass, and it was a matter of commonsense that workers, whose working arrangements by design provide much greater periods of leave than the minimum amounts stipulated in the Working Time Regulations (WTR), are not entitled to additional leave.
Set out as bluntly as this, the question that might be asked is how could the unions possibly justify the use of its members’ funds in so doubtful a claim?
The answer lies in the absence of essential clarity in the regulations themselves.
The most important terms of any employment contract are wages and leave entitlement. Both should be set out with absolute clarity or disagreement between employer and employee becomes inevitable.
In its wisdom, the European Parliament said WTR will apply to all workers, regardless of occupation, but the rules were actually designed to suit someone like me who works in a 9-5 office environment, and fail to accommodate bespoke work arrangements such as the two-week on-off rota used widely in offshore situations.
The WTR creates rights to minimum periods of paid leave. One might reasonably expect therefore that “leave” would be defined within the regulations so that employers and employees would know exactly what has to be provided for by way of leave.
But the law is so vague and ambiguous that it was inevitable it would spawn argument and ultimately the head-on dispute between the unions representing workers offshore and their employers.
Peter Sharp is a partner in McGrigors’ employment law team, which advised Oil and Gas UK on the working time regulations case.