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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Craig & Ors v Transocean International Resources Ltd [2008] UKEAT 0029_08_1612 (16 December 2008) URL: https://www.bailii.org/uk/cases/UKEAT/2008/0029_08_1612.html Cite as: [2008] UKEAT 0029_08_1612, [2009] IRLR 519, [2008] UKEAT 29_8_1612 |
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At the Tribunal | |
Before
THE HONOURABLE LADY SMITH
MR M SIBBALD
MR R THOMSON
1) MR M CRAIG 2) MS M TAYLOR |
APPELLANTS |
RESPONDENT | |
TRANSOCEAN INTERNATIONAL RESOURCES LIMITED AND OTHERS |
APPELLANTS |
RESPONDENTS |
Transcript of Proceedings
JUDGMENT
For the Appellants (UKEATS/0029/08/MT) and Respondents (UKEATS/0030/08/MT) Ms Taylor and Mr Craig For the Respondents (UKEATS/0029/08/MT & UKEATS/0030/08/MT) Mr Price, Mr Burgess, Mr Robinson, Mr Sangbarani and Mr McGuire |
MR J HENDY (One of Her Majesty's Counsel) Instructed by: Ms C McCrossan c/o The Library 70 Carden Place Aberdeen AB10 1UP MR A STAFFORD (One of Her Majesty's Counsel) Mr P Edwards (of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors Suite 1b Joseph's Well Hanover Walk Leeds LS3 1AB & Messrs Allan Mc Dougall Solicitors 3 Coates Crescent Edinburgh EH3 7AL |
For the Appellants (UKEATS/0030/08/MT) and Respondents (UKEATS/0029/08/MT) Transocean International Resources & Others |
MR J CAVANAGH (One of Her Majesty's Counsel) Instructed by: Messrs Simpson & Marwick Solicitors 4 Carden Terrace Aberdeen AB10 1US |
SUMMARY
Working Time Regulations.
Annual leave of offshore workers. Whether employers had given regulation 15 notices. Whether annual leave could be taken out of onshore "field breaks".
Appeal allowed and claims under regulation 30 of WTR dismissed. Regulation 15 notices had been given by employers in response to requests for annual leave and annual leave could be taken out of field breaks.
THE HONOURABLE LADY SMITH
Introduction
(1) the respondents' appeal against a judgment of the Employment Tribunal sitting at Aberdeen, Employment Judge RG Christie, registered on 21 February 2008, in which it was held that, leaving aside certain jurisdictional issues, the respondents had refused to permit the claimants to exercise the right to annual leave to which they were entitled under the WTR; and
(2) the TGWU/Amicus claimants' appeal (with which the OILC claimants associated themselves) against a subsequent review judgment, registered on 1 December 2008 by which it was held that:
a. time spent by the claimants in travelling between the embarkation point at the heliport at Dyce and the relevant offshore installation is not working time within the meaning of the WTR,
b. time spent during onshore field break in travelling to training courses or medical appointments or the like is not working time within the meaning of the WTR, and
c. whilst time spent on training courses, medical appointments and the like onshore is working time within the WTR, the claimants' entitlement to annual leave was calculated without taking that working time into account.
The working time directive and the WTR
"8. Every worker in the European Community shall have a right to a weekly rest period and to annual paid leave …
19. …
improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations;
…
…
… in order to ensure the safety and health of Community workers, the latter must be granted minimum daily, weekly and annual periods of rest and adequate breaks …."
"(5) All workers should have adequate rest periods. The concept of 'rest' must be expressed in units of time, i.e. in days, hours, and/or fractions thereof. Community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks …"
"2. This Directive applies to:
(a) minimum periods of daily rest, weekly rest and annual leave …"
"For the purposes of this Directive, the following definitions shall apply:
1. 'working time' means any period during which the worker is working, at the employer's disposal and carrying out his activity or duties …
2. "rest period" means any period which is not working time;"
"Daily rest
Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period."
"Breaks
Member States shall take the measures necessary to ensure that where the working day is longer than six hours, every worker is entitled to a rest break …"
"Weekly rest period
Member States shall take the measures necessary to ensure that, per each seven- day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours' daily rest referred to in Article 3…"
"Annual leave
1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks …"
"Rest period" is defined as meaning:
"…a period which is not working time, other than a rest break or leave to which the worker is entitled under these Regulations."
"Working time" in relation to a worker is defined as:
"(a) any period during which he is working, at his employers' disposal and carrying out his activity or duties,
(a) any period during which he is receiving relevant training, and
(b) any additional period which is to be treated as working time for the purposes of these Regulations under a relevant agreement;"
"10(1) An adult worker is entitled to a rest period of not less than eleven consecutive hours in each 24-hour period during which he works for his employer……."
"11(1) … an adult worker is entitled to an uninterrupted rest period of not less than 24 hours in each seven–day period during which he works for his employer …"
"12(1) Where an adult workers' daily working time is more than six hours, he is entitled to a rest break ….
…
(3) … the rest break provided for in paragraph (1) is an uninterrupted period of not less than 20 minutes, and the worker is entitled to spend it away from his workstation if he has one."
"13(1) … a worker is entitled in each leave year to a period of leave determined in accordance with paragraph (2).
(2) The period of leave to which a worker is entitled under paragraph (1) is –
…
…
(c) in any leave year beginning after 23rd November 1999, four weeks."
"15. (1) A worker may take leave to which he is entitled under regulation 13(1) on such days as he may elect by giving notice to his employer in accordance with paragraph (3), subject to any requirement imposed on him by his employer under paragraph (2).
(2) A worker's employer may require the worker –
(a) to take leave to which the worker is entitled under regulation 13(1);
or
(b) not to take such leave,
on particular days, by giving notice to the worker in accordance with paragraph (3).
(3) A notice under paragraph (1) or (2) –
(a) may relate to all or part of the leave to which a worker is entitled in a leave year;
(b) shall specify the days on which leave is or (as the case may be) is not to be taken and, where the leave on a particular day is to be in respect of only part of the day, its duration; and
(c) shall be given to the employer or, as the case may be, the worker before the relevant date …"
"17. Where during any period a worker is entitled to a rest period, rest break, or annual leave both under a provision of these Regulations and under a separate provision (including a provision of his contract), he may not exercise the two rights separately, but may, in taking a rest period, break or leave during that period, take advantage of whichever right is, in any particular respect, the more favourable."
"24. Where the application of any provision of these Regulations is excluded by regulation 21 or 22 …. and a worker is accordingly required by his employer to work during a period which would otherwise be a rest period or rest break –
(a) his employer shall wherever possible allow him to take an equivalent period of compensatory rest …".
"30.(1) A worker may present a complaint to an employment tribunal that his employer –
(a) has refused to permit him to exercise any right he has under –
(i) regulation … 13(1);
…
(3) Where an employment tribunal finds a complaint under paragraph (1)(a) well founded, the tribunal –
(a) shall make a declaration to that effect, and
(b) may make an award of compensation to be paid by the employer to the worker.
(4) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to –
(a) the employer's default in refusing to permit the worker to exercise his right, and
(b) any loss sustained by the worker which is attributable to the matters complained of."
"In the main proceedings, the characteristic features of working time are present in the case of time spent on call by doctors in primary care teams where their presence at the health centre is required. It is not disputed that during periods of duty on call under these rules, the first two conditions are fulfilled. Moreover, even if the activity actually performed varies according to the circumstances, the fact that such doctors are obliged to be present and available at the workplace with a view to providing their professional services means that they are carrying out their duties in that instance."
"According to the court, the decisive factor in considering that the characteristic feature of the concept of working time within the meaning of Directive 93/104 are present in the case of time spent on call by doctors in the hospital itself is that they are required to be present at the place determined by the employer and to be available to the employer in order to be able to provide their services immediately in case of need. In fact, as may be inferred from SIMAP at para 48, those obligations, which make it impossible for the doctors concerned to choose the place where they stay during waiting periods, must be regarded as coming within the ambit of the performance of their duties."
Background
"After taking into account compensatory rest, training and all other times that you are required to be at work the leave which you will take, including as it does the majority of all field break under your existing arrangements, is significantly more favourable than your entitlement under WTR. As entitlement to leave under WTR only arises if it is the more favourable, your request is invalid.
However, if notwithstanding this you have an entitlement to more favourable leave under WTR and if your request is invalid (sic) we refuse it under Regulation 15(2). Our position is to require all leave under WTR to be taken under field break."
"I do so in line with the working time regulations (amended) 2003 and unless I am served counter notice not to take paid leave on these dates then it will be my understanding that you have sanctioned my request."
That request was refused by his employers.
"It is not the case that you have an outstanding entitlement to 2/4 weeks annual leave under that regulation and on that basis your notice is invalid. Entirely without prejudice to that position, we give you notice that in any event you are not to take leave in the period from 23 August 2004 until 4 October 2004."
"(you are) not entitled to any additional payments, as you have requested … as we believe that the existing terms and conditions of your contract of employment are compliant with the requirements of the HAD. If you still wish to take the aforementioned dates as unpaid leave then please liaise with your facilities manager ….".
Similar responses were given to her later requests to take such leave.
"You are hereby notified in terms of Regulation 15 of the Working Time Regulations 1998 that you are not to take leave during the period 5 July 2004 to 26 July 2004. Your entitlement to annual leave is discharged by your field break. You will therefore be entitled to exercise your right to take annual leave on the submission of an appropriate notice in respect of a field break period."
A similar request and refusal took place as between Mr Craig and his employers in October 2004.
"I regret to inform you that your request cannot be processed. Under your current terms and conditions of employment you are not entitled to additional leave other than that incorporated into your existing work rotation."
"… in line with the Working Time Regulations (amended) 2003 and unless I am served counter notice not to take paid leave on these dates then it will be my understanding that you have sanctioned my request."
The response to his request was in a letter of 10 May 2004 which included:
"Under the Working Time Regulations valid notice can only be given in relation to leave, which you are entitled to take under Regulation 13. It is not the case that you have an outstanding entitlement to two/four weeks annual leave under that Regulation and on that basis your notice is invalid."
"A tour of duty on the drilling unit will be for 7, 14, 21, 28 days respectively. This tour will be followed by paid off-time period of 7, 14, 21, 28 days respectively …"
and clause 6 of his contract provided:
"In addition to paid leave as specified in Clause 4 above, 4 days vacation pay will be paid to all offshore employees ………..".
"A tour of duty on the drilling unit will be for 7, 14, or 21 consecutive days of 12 hours per day. This tour will be followed by an off-time period of 7, 14, or 21 days respectively ……"
and clause 6 of his contract provided:
"Annual Leave
There is no remuneration paid for vacation for offshore employees. Vacation pay is included in your monthly base salary."
"Work Pattern
You will be required to work fourteen/twenty one days as directed by the Company Management, and for each fourteen/twenty one days worked you will be entitled to fourteen/twenty one days leave onshore at the end of your tour of duty ……."
and clause 18 of her contract provided:
"The work pattern provides for 13 trips per annum, a trip comprising of a 28 day period of 14 working days and 14 days field break. Should an employee request (in writing) one trip off work in order to take his annual unpaid holiday entitlement, he will be allowed to do so by arrangement with Offshore Management ………. Should no request be made, he/she will be allowed to work 13 trips per annum."
"The standard work pattern will consist of an equal amount of weeks offshore as to the number of weeks onshore."
"The standard work pattern will consist of an equal amount of weeks offshore as to the number of weeks onshore."
and it specified that his "Trip Length" was "2 weeks on/2 weeks off".
"The work/field break cycle will be either 28 or 42 days … On completion of the work period, and handover the remainder of cycle is taken as field break."
The Tribunal's Judgment
Annual Leave
"……. what would otherwise be an obligation to work or be available to work." (para 272)
"Any suggestion that at the beginning of any particular field break a worker could give notice that he was about to take two weeks holiday seems fatuous. No-one would be interested."
"In our view, contrary to that of the respondents, a distinction requires to be drawn between days of non-work which can properly be designated as leave, and those which are simply part of the workers' standard working pattern." (para 298)
"Every worker we can think of has periods of non-work, even when the system under which he works might not necessarily follow a strict pattern. The most obvious example is perhaps the Monday – Friday worker, for who Saturday could be said to comprehend the minimum 24-hour weekly rest period, leaving Sunday undesignated in WTR terms – undesignated at least in terms of the minimum rest periods. The logic of the respondents' position would be to regard each Sunday as part of annual leave, thus affording 52 separate days of leave per annum which in total is in excess of four weeks. Thus, it would be said such a worker has no further entitlement and would never then be released from any day of his scheduled work to take leave." (para 298)
"The point then is not so much that there is more than ample time onshore to comprehend annual leave, after allowing for all conceivable rest or compensatory rest periods. The point is more that it is only in any sense meaningful to have leave from the time when a worker would otherwise have been working."
Travelling time and treatment of periods on training courses etc
Appeal in respect of Requests for Annual Leave:
i) Respondents' Submissions
ii) Claimants' Submissions
Claimants' Appeal: When working time begins in respect of each offshore trip, whether periods of travel to and from training courses and medical etc appointments is working time and whether the tribunal erred in failing to allow for onshore time on training courses and medical etc appointments in its calculation of days of annual leave to which the claimants were entitled?
Submissions for the claimants
Submissions for the respondents
Discussion
Annual Leave:
"It is convenient first to deal with Mr Hogarth's submission, advanced as I understand it for the first time on this appeal, that the contractual arrangements in Caulfield expose a florid violation of the Directive and the Regulations because they do not allow for annual leave at all. The submission depends on the proposition that a worker who in any year takes advantage of the contract's provision for an extended period leave of eight or 16 days does just as much work, not a day less, than his fellow who takes no such leave but merely sticks, all through the year, to the four days on/four days off regime. The argument's premise, of course, is that the worker remaining on the ordinary regime gets no leave. The premise is false. I have already set out the material terms of the collective agreement, including this provision: 'holidays are taken during the rest day periods in the rota system.' It is beyond contest that rest day periods are included in the four days on/four days off regime. There can in my judgment be no quarrel with the appeal tribunal's finding …
"holidays are taken by employees as part of their four out of every eight days throughout the year …"
"But the submission proves too much and therefore goes nowhere. Save in a case where the contract dictates the dates on which leave is to be taken (and of course no one contends that the Directive requires so crudely inflexible a state of affairs) any day might be one on which 'the worker would otherwise be working'."
Minority View
Unanimous Observation
Other Issues
Disposal