The Employment Appeal Tribunal (“EAT”) has held in Craig & ors v Transocean & ors, by a majority vote, that annual leave for offshore workers can be taken out of onshore “field breaks” provided that the employer follows the requisite counter notice process under the Working Time Regulations 1998 (“WTR”).
In March 2008, in Craig & ors v Transocean & ors, the Aberdeen Employment Tribunal had decided that offshore workers are 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 Appeal
The EAT considered two issues under the appeal:
1. Whether the employers had given effective notice under Regulation 15 of the WTR that annual leave would be taken during field break; and
2. 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 counter notice that annual leave would 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 Regulation 15 notice requirement of the WTR.
Can time off during onshore field break ever constitute annual leave?
This was the second issue to be considered. 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 they would not otherwise be working during it.
The EAT disagreed with the employers and held that the time available in the field breaks is not working time nor is it compensatory rest. 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.
Practical Implications
Unanimously, the EAT observed that the conflict may “have been avoided if the Respondents had acted as an employer who seeks to achieve best practice in employment relations could have acted.”
Although it was held that the employers had complied with the notice requirement under Regulation 15, the EAT added that a good employer would have given their employees advance notice of the periods that they could and could not take leave, rather than leaving matters until the various Regulation 15 notices were served by the workers.
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.
The alternative is of course for employers to reach collective agreements with trade unions, or workforce agreements about the taking of holiday.
