Annual Leave Of Offshore Workers

The Inner House Of The Scottish Court Of Session Has Held, In T.L. Russell & ors v Transocean International Resources Limited & ors, that annual leave for offshore workers can be taken out of onshore "field breaks", thus choosing to follow the 2009 ruling of the Employment Appeal Tribunal ("EAT"). This decision has been one eagerly awaited by the offshore oil & gas industry, and is being met with significant relief by employers in the sector.

These cases have been ongoing for several years. In March 2008, the Aberdeen Employment Tribunal had decided that offshore workers were entitled to paid annual leave under the Working Time Regulations 1998 ("WTR") proportionate to the time spent working offshore and that field break could not count as holiday under the WTR. However, in March 2009, the EAT held (by a majority) that, provided the employer followed the requisite counter notice process under the WTR, providing for annual leave in field break would be in keeping with the requirements of the WTR for such leave.

The Court of Session Appeal

The primary arguments before the Court remained centred on whether annual leave could be taken from time already allocated as field break, or whether it would have to be taken from 'offshore time', being time that would otherwise be spent working. In the sample cases before the Court each employee worked on an equal time basis, with either 2 or 3 weeks offshore, followed by an equal period of field break.

A key argument on behalf of the unions representing the employees was that to allow the approach of holiday in field break would be the equivalent of requiring an onshore worker to take annual leave at a weekend. Their Lordships dismissed this argument, distinguishing between rest breaks in a 'working' week, and time off in a week in which no work is done (which, it was held, the WTR does not require to be classed as a rest period). The Court was also satisfied that the WTR do not lead to a situation where an employer can "controvert the fundamental right to... annual leave by stipulating that non-working days within the weekly working cycle (typically Saturdays and Sundays) must be treated as annual leave". In this way, the Court was convinced that the employers' arguments were sound, and that field break was...