UKSC 57
On appeal from:  CSIH 82
Russell (Appellant) and others v Transocean International Resources Limited and others (Respondents) (Scotland)
Russell and others (Appellants) v Transocean International Resources Limited and others (Respondents) (Scotland)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
7 December 2011
Heard on 26 and 27 October 2011
Thomas Linden QC
(Instructed by Thompsons Solicitors)
John Cavanagh QC
(Instructed by Simpson & Marwick)
LORD HOPE (WITH WHOM LORD BROWN, LORD MANCE, LORD KERR AND LORD WILSON AGREE)
Annual leave - the statutory entitlement
"… on the core question of whether the annual provision by the employers of 26 weeks of field break fails to satisfy the entitlement of the employees under regulation 13 of the WTR, the answer which we give is in the negative. For all the reasons which we have given we consider that the working pattern of field break applicable in these appeals satisfies the requirements of the WTR, interpreted in the light of the WTD."
Relevant provisions of the WTD
"4. The improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations.
5. All workers should have adequate rest periods. The concept of 'rest' must be expressed in units of time, ie in days, hours and/or fractions thereof. Community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks. It is also necessary in this context to place a maximum limit on weekly working hours."
"1. 'working time' means any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice;
2. 'rest period' means any period which is not working time."
There then follows Chapter 2, which is headed "minimum rest periods – other aspects of the organisation of working time." The way working time is to be organised is then set out in articles 3 to 7.
"1. Member states shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.
2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated."
The words "consecutive" and "uninterrupted" which qualify the periods of daily rest in article 3 and weekly rest in article 5 do not appear here. So article 7 does not require that the weeks of annual leave must be taken consecutively or that those weeks cannot be interrupted.
Relevant provisions of the WTR
" 'rest period', in relation to a worker, means 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, means-
(a) any period during which he is working, at his employer's disposal and carrying out his activity or duties,
(b) any period during which he is receiving relevant training, and
(c) any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement."
"(1) Subject to paragraph (5) [which is not relevant for present purposes], a worker is entitled to four weeks' annual leave in each leave year.
(9) Leave to which a worker is entitled under this regulation may be taken in instalments, but –
(a) it may only be taken in the leave year in respect of which it is due, and
(b) it may not be replaced by a payment in lieu except where the worker's employment is terminated."
"A worker's employer may require the worker –
(a) to take leave to which the worker is entitled …; or
(b) not to take such leave,
on particular days, by giving notice to the worker in accordance with paragraph (3)."
Paragraph (3) states that a notice under paragraph (1) or (2) may relate to all or any part of the leave to which a worker is entitled in any leave year, must specify the days on which leave is or is not to be taken and, where the leave on a particular day is to be in respect of only a part of a day, its duration. It contains provisions about the date before which notice is to be given to the employer or the worker, as the case may be.
The appellants' case
"29. The entitlement of every worker to paid annual leave must be regarded as a particularly important principle of Community social law from which there can be no derogations and whose implementation by the competent national authorities must be confined within the limits expressly laid down by Directive 93/104 [the then current working time Directive].
30. It is significant in that connection that that Directive also embodies the rule that a worker must normally be entitled to actual rest, with a view to ensuring effective protection of his health and safety, since it is only where the employment relationship is terminated that article 7(2) permits an allowance to be paid in lieu of paid annual leave.
32. The purpose of the entitlement to annual leave is different from that of the entitlement to maternity leave. Maternity leave is intended, first, to protect a woman's biological condition during and after pregnancy and, secondly, to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth."
"It is common ground that the purpose of the entitlement to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure. The purpose of the entitlement to sick leave is different. It is given to the worker so that he can recover from being ill."
But it did not add anything to its previous jurisprudence on this matter. There was no indication here or in Gomez that the quality of any periods of time that were set aside for rest affected the question whether, in terms of their duration or the time that was selected, they were sufficient for the purposes of the WTD.
"ie, is it that a particular period cannot be said to be leave because it is a period when there is no obligation to work, or is it that there is only no obligation to work because the period in question has already been designated as leave?"
It referred to the case of teachers in non-term time and tradesmen in the "trades fortnight" as examples of the latter where the period when annual leave could be taken had already been designated. But it did not try to resolve this apparent anomaly, as it did not see these cases as giving rise in practice to any difficulty. The solution which it favoured, contrary to what happened in practice in those cases, seemed to it to be founded on the common sense proposition that the worker's entitlement to each of the measures provided for by the WTR required to be real, in the sense that they genuinely provided a break from what would otherwise be an obligation to work or to be available to work. But the facts of this case do not support the idea that the field break is not a genuine break or otherwise unreal. Nor has there been any suggestion that the pattern of working has had, or is liable to have, an adverse effect on the appellants' health or safety.
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