One might ask – if an employee who works 12 weeks on, 12 weeks off can be forced to take his annual holidays during his periods of 12 weeks off, what is there to stop an employer requiring employees who work a more traditional pattern of 5 days on, 2 days off to take their annual holidays at the weekends? This particular division of the EAT appears to conclude that there is nothing to stop such a practice.
Offshore workers have been covered by the Working Time Regulations since 1 August 2003. A large number of employees working offshore had raised proceedings against their employers claiming that they had not been receiving their annual leave entitlement in terms of the Working Time Regulations.
They argued that the law requires their annual holiday entitlement under the WTR to be taken at times they would otherwise have been working. Therefore, they said, all holidays must be taken at times they were rostered to be offshore (at work) and not at times they were rostered to be on shore leave (during a field break).
The EAT, overturning the Employment Tribunal’s decision, held that the employers had provided notice to take annual leave during field breaks in the contracts of employment. The employers were entitled to give advance notice to the employees of periods during which they could or could not take annual leave. The EAT also held that annual leave is not required to be taken from periods when an employee would otherwise be working.
There was an observation by the EAT that employers could have avoided the difficulties arising in this case if they had given advance notice to the employees of the periods in which they could and could not take annual leave. The EAT observed that many employers give advance notification prior to each annual leave year.
The possible implications of this judgment are in no way limited to offshore workers. One might ask – if an employee who works 12 weeks on, 12 weeks off can be forced to take his annual holidays during his periods of 12 weeks off, what is there to stop an employer requiring employees who work a more traditional pattern of 5 days on, 2 days off to take their annual holidays at the weekends? This particular division of the EAT appears to conclude that there is nothing to stop such a practice.
Of course, only one day’s annual leave could be taken by a Monday-Friday employee at the weekend, as the other day would have to be the employee’s unbroken 24 hour weekly rest break under the WTR.
Although it must be very doubtful that Parliament intended it to be possible to require employees who work Monday to Friday to take their holidays at weekends, there is a powerful counter-argument in support of the EAT’s decision.
In any industry where there are fixed periods of shutdown, it is arguable that holidays could not lawfully be taken during these periods of shutdown if holidays had to be taken at times employees would otherwise be working. Again, it must be doubtful that Parliament intended this effect either.
It remains to be seen if a higher appellate court gets the opportunity to consider this issue in the near future. In the meantime, there must remain a degree of uncertainty as to exactly what circumstances employers can require employees to take holidays at a time they would not otherwise be working.
We would respectfully suggest that whichever way the EAT had decided this case, the decision would have highlighted the potential weakness of the WTR as presently drafted. It may be that Parliament will have to revisit this issue in due course.
The case does however emphasise the real advantages to an employer of having detailed written terms and conditions about holidays. Just Employment Law is well placed to assist your business with the production or revision of such terms in light of this judgment.