The Aberdeen employment tribunal has finally issued its judgement in relation to the claims made by offshore workers for annual leave under the Working Time Regulations 1998 (“WTR”). It decided that offshore workers are entitled to paid holiday under the WTR proportionate to the time spent working offshore and that field break does not count as holiday under the WTR, given the pattern of work and terms of employment in the industry
The hearing in relation to the merits of these cases took place over a number of weeks in October and November 2007. The fact that a judgement in excess of 150 pages has now been issued highlights the complexity of issues and volume of evidence that the tribunal was required to consider.
Background
Offshore workers claiming they were not receiving their entitlement to annual leave under WTR had presented several hundred applications to the tribunal. However, only seven “sample” cases proceeded to a hearing in an attempt to make this a more manageable process. The implications of the judgement, however, affect all employers with staff working in the UKCS.
The arguments put by both the unions and the employers have been familiar for some time. On behalf of the unions it was argued (a) that annual leave cannot be taken from time that is already classed as field break and (b) by the OILC in particular that there would be no time for annual leave during the field break in any event as it would be taken up with “compensatory rest” as, in their submission, daily or weekly rest could not be taken offshore for a variety of reasons.
This second argument was of great concern to the oil and gas industry due to its potential implications. If upheld, it would effectively have meant that all time offshore (whether on or off shift) would have to be classed as working time. This in turn would mean that, due to the requirement to provide compensatory rest, an ‘equal time’ working arrangement (e.g. two weeks offshore followed by two weeks’ field break) would not comply with WTR. This would potentially require a massive increase in the offshore workforce in order to allow for longer field breaks. Given the current difficulties in many areas of the industry to recruit experienced staff, combined with the serious health and safety concerns of a sudden influx of relatively inexperienced staff and the extra helicopter flying involved, employers waited with bated breath for the employment judge’s view on this point.
On behalf of the employers, it was argued that existing field break arrangements should be more than sufficient to include the entitlement to statutory annual leave. The employers argued that additional leave only had to be provided under WTR where the existing arrangements did not already provide that leave. In their submission, the offshore workers already had more than enough leave by virtue of the field break arrangements. A great deal of evidence was also led in response to the OILC’s arguments with respect to what should be classed as working time.
The Judgment
The tribunal’s main findings can be summarised as follows: -
- The argument that all time offshore is working time was soundly rejected, both on legal analysis and on the particular facts. This was a very important finding for the industry as a whole.
- The tribunal therefore also concluded that most of the required daily and weekly rest can be provided offshore when the worker is off shift. There is only minimal rest that cannot be taken offshore (in particular the weekly required rest of one whole workless day) and this is met by virtue of the field break arrangements.
- However, the employment tribunal came to the conclusion, by virtue of binding European Court of Justice and domestic case law, that annual leave must be provided from what was otherwise be working time i.e. offshore time. The way in which this affects individual businesses and work patterns will vary, but the tribunal essentially confirmed that field break provisions do not amount to paid annual leave as field break was not time when workers would otherwise be required to work.
In answer to the question of how much time off an offshore worker should receive, the tribunal considered (agreeing with the employers) that it would be artificial simply to look at the working element of the work pattern and that the entire pattern must be considered. This involves a pro rating process, whereby both working time and field break are considered. For an equal time worker (e.g. one on a “two weeks on, two weeks off” shift), this means that the average working “week” is 3.5 days, so a statutory four week holiday entitlement would give rise to an entitlement of 14 (3.5 x 4) days off from offshore time.
Practical Implications
Employers of offshore workers are now considering how to address the findings of the employment tribunal. There is still the possibility of an appeal (to the Employment Appeal Tribunal) within 42 days of the decision but it is not yet clear whether this will happen. In the meantime, businesses require to assess whether any changes are required both to their contractual and practical working arrangements, given the tribunal’s clear finding that changes to contracts alone, in order to reclassify time, will be a sham. The tribunal has also soundly encouraged employers and unions to reach agreement on these issues, as WTR permits.
It should be noted that the cases before the tribunal had been presented prior to the increase in holiday entitlement in October 2007 from 4 to 4.8 weeks. The unions have indicated that they will now be seeking to liaise with employers over how to provide this additional annual leave from offshore time. As the statutory entitlement is due to increase once more to 5.6 weeks in April 2009, it may be sensible for employers to consider long term planning to address this.
