EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lady Paton Lord Emslie	[2010] CSIH 82 XA69/09 XA71/09 OPINION OF THE COURT delivered by LORD EASSIE in the appeal under Section 37(1) of the Employment Tribunals Act 1996 by T. L. RUSSELL and OTHERS Appellants; against TRANSOCEAN INTERNATIONAL RESOURCES LIMITED and OTHERS Respondents: _______

Appellants (a) UNITE: Napier, Q.C.; Allan McDougall

(b) OILC: O'Neill, Q.C.; Lefevre Litigation

Respondents: Michael Jones, Q.C.; Simpson & Marwick, W.S.

19 October 2010

Introductory

[1] The appellants in these appeals from a decision of the Employment Appeal Tribunal are all employed on offshore installations. Their cases constitute seven "sample" cases selected from a much larger number of complaints lodged with the Employment Tribunal
[1] by others similarly employed. They were selected as sample cases with a view to resolving certain issues of principle arising under the Working Time Regulations 1998, as amended, - "WTR". The seven sample cases were heard by the Employment Tribunal sitting in Aberdeen between 8 October 2007 and 16 November 2007 when evidence was led from a large number of witnesses. The Employment Tribunal issued its decision on 21 February 2008.

[2] Five of the appellants in the sample cases are members of the trade union UNITE and have throughout been represented by counsel instructed by solicitors acting on behalf of that trade union. They are a Mr J. Price, Mr A. McGuire, Mr M. Burgess, Mr David Robertson and Mr Armand Sangbarani. The remaining two appellants are Avril Taylor and Michael Craig
[2]. They are members of the OILC trade union and have similarly been legally represented throughout the proceedings but by a different legal team. While the appellants have different employers, those employers have instructed a single common representation throughout the proceedings.

[3] While a number of working time issues were canvassed before the Employment Tribunal, and to a much lesser extent the Employment Appeal Tribunal, the essential issue of principle in these appeals to this court concerns the provision to the appellants of the annual leave of four weeks to which it is accepted that they are entitled under Regulation 13(1) of the WTR.

[4] To put that issue into context at this stage it is necessary to set out some essentially undisputed facts respecting the offshore employment regime which was considered by the Employment Tribunal in the applications presented to it.

[5] With the exception of one appellant, Michael Craig, all of the appellants were employed on the general or customary basis in offshore employment of working offshore, on a platform or a rig, for two weeks and of thereafter having two weeks onshore, when, subject to a qualification to which we shall refer, the employee is off duty and may spend that time as he or she may choose. Such time onshore is referred to in the industry as "field-break". In the case of Michael Craig, a radio operator, he worked a roster of three weeks on and three weeks off. That distinction in his case is without any materiality to the issues canvassed before the court.

[6] Accordingly, subject to the qualification already mentioned, the appellants worked for 26 weeks in the year on their respective offshore installations; but for 26 full weeks of the year their time was their own. The qualification is that certain occasional activities connected to the worker's employment might take place during a field-break week. Those activities are training courses, appraisals, grievance and disciplinary hearings, medical assessment (which takes two hours and which employees undergo every two years) and offshore survival courses. It was accepted before the Employment Tribunal that for the purposes of the issues with which it was concerned those activities were de minimis.

[7] While working offshore on the installation, the working pattern was that of 12 hours on duty followed by 12 hours off duty. Within the limitations of living on an offshore installation, employees were free to do what they wished during the off-shift period. The Employment Tribunal, rejecting a contention advanced by the OILC claimants, held that the "off-shift offshore" time was not "working time" and hence constituted a "daily rest period" in terms of WTR. Before the Employment Appeal Tribunal that issue was not pursued, after it was conceded by counsel instructed for the OILC claimants that, even if it were the case that the contention had been wrongly rejected by the Employment Tribunal, the temporal extent of field-break was such as to allow for both annual leave and any compensatory rest. That issue was thus not the subject of any ground of appeal in the appeal before this court, and the concession before the Employment Appeal Tribunal was adhered to by counsel instructed in the appeal to this court. In those circumstances the court resolved at a prior hearing that the issue whether "off-shift offshore time" constituted "working time" should not be reopened at the sole instance of the appellants in the OILC appeals.

[8] Thus, given the acceptance that during the annual 26 weeks of field-break there was sufficient free time available to the employee even after allowing for the OILC contention on compensatory rest and the occasional, employment related, activities referred to in paragraph 6 supra (training courses, medical assessments etc.) to meet the provision of four weeks of free time by way of annual leave, the question for decision is whether the appellants' entitlement to a minimum of four weeks' paid annual leave could be satisfied by the provision to them of 26 weeks of field-break in which they were not required to perform any work (subject to the de minimis matters already mentioned). The employers - the respondents - contend that it could be so satisfied. The employees - the appellants - contend that it could not, and that they were entitled to be free from attendance for duty on four of the 26weeks for which they would otherwise be rostered for work on the offshore installation. Put in other words, they submit that they should only have 22 weeks of actual work on the offshore installation; they should have 30 weeks onshore, the extra four weeks representing time in which they would otherwise have been rostered for duty.

[9] The Employment Tribunal found in favour of the appellants. Its conclusion is to be found in paragraph 300 of its judgment:

"It follows ... that 'leave' in Regulation 13 [WTR] involves a 'release from what would otherwise have been an obligation to work', or at least to be available for work or otherwise in some way 'on call'. That is what both the Court of Appeal in Ainsworth and Lady Smith in the EAT in Sumsion regarded as the natural meaning of the word 'leave'. We therefore conclude that for the present cases the claimants have not been granted their entitlements to annual leave under Regulation 13 of the WTR."

In its judgment the Employment Appeal Tribunal referred to that conclusion in paragraph 64 of its judgment and further summarised it as being to the effect that annual leave required to be taken out of the time when the employee would otherwise have been working offshore. It noted that the respondents' submission that annual leave was provided during field-break was found by the Employment Tribunal as flawed because the claimants were not required to work during that period. In paragraph 65 and following paragraphs of its judgment the Employment Appeal Tribunal examined the process whereby the Employment Tribunal arrived at its conclusion. By a majority the members of the Employment Appeal Tribunal disagreed with the Employment Tribunal. The essential basis of the majority view is set out in paragraph 130 of the Employment Appeal Tribunal judgment:

"130. In all these circumstances, the majority of us conclude that the claimants' argument is without merit. The time conceded to be available in the field-breaks is not working time nor is it compensatory rest. Further, during that available time, the claimants are free of all and any actual work obligations and not subject to the possibility of being called on to work. It is a rest period and is a rest period during which none of the three criteria involved in the definition of working time in the WTD and WTR apply actually or potentially. It is time that is available for annual leave; it is available to afford to the claimants the rest from work which the WTD and WTR seek to achieve. It does not matter that, because of the working patterns in the industry, the claimants would not otherwise be working during those periods. The Tribunal came close to realising as much in recognising that there was a circularity to their own argument. Unfortunately they became deflected by wrongly thinking that field-break could not be used for leave because the claimants would not otherwise have been working during it."

The legislative texts

[10] The WTR constitute the legislative measure whereby the United Kingdom seeks to implement certain European directives "on the organisation of working time".

[11] The first such directive was EC Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time [OJ 1993 No. L307, p. 18]. It excluded from its ambit offshore working, but by a later directive in 2003 the 1993 Directive was amended in certain respects which included bringing offshore working within its scope. In view of the various amendments made to the original directive there was then enacted an essentially consolidating directive, viz Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time [OJ 2003 No. L299 p. 9]. With a view to reflecting those developments in the implementing legislation in the United Kingdom, the original WTR was amended by certain statutory instruments.

[12] However, while it is appropriate to note the legislative history, the debate in these appeals proceeded on the basis of the 2003 Directive - "the WTD" - and the WTR as amended.

The WTD
[13] In recital (2) in the preamble to the operative provisions of the WTD, reference is made to the underlying treaty provision, namely Article 137 of the Treaty establishing the European Community, which provides that the Community is to support and complement the activities of the Member States with a view to improving the working environment to protect workers' health and safety. Recitals (4) and (5) may be noted:

"(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, i.e. 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."

[14] So far as the operative provisions of the WTD are concerned, Article 1(1) and (2) provide:

"1. This Directive lays down minimum safety and health requirements for the organisation of working time.

2. This Directive applies to:

(a) minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and

(b) certain aspects of night work, shift work and patterns of work."

Definitions are provided in Article 2, those which may be pertinent to these appeals being:

"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;

...

9. 'adequate rest' means that workers have regular rest periods, the duration of which is expressed in units of time and which are sufficiently long and continuous to ensure that, as a result of fatigue or other irregular working patterns, they do not cause injury to themselves, to fellow workers, or to others and that they do not damage their health, either in the short term or in the longer term."

[15] There then follows Chapter 2 of the WTD, headed "Minimum rest periods - other aspects of the organisation of working time", which contains these provisions:

"Article 3

Daily Rest

Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.

Article 4

Breaks

Member States shall take the measures necessary to ensure that, where the working day is longer than six hours, every worker is entitled to a rest break, the details of which, including duration and the terms on which it is granted, shall be laid down in collective agreements or agreements between the two sides of industry or, failing that, by national legislation.

Article 5

Weekly rest period

Member States shall take the measures necessary to ensure that, per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours' daily rest referred to in Article 3.

If objective, technical or work organisation conditions so justify, a minimum rest period of 24 hours may be applied.

Article 6

Maximum weekly working time

Member States shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers:

(a) the period of weekly working time is limited by means of laws, regulations or administrative provisions or by collective agreements or agreements between the two sides of industry;

(b) the average working time for each seven-day period, including overtime, does not exceed 48 hours.

Article 7

Annual Leave

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 WTR
[16] As might be expected, the provisions of the WTD are reflected in the WTR, but the reflection is not always an exact one and much is added by way of detailed provisions. The principal provisions of the WTR which found prominence in the argument before us are as follows.

[17] First, in its extensive list of definitions, regulation 2(1) of the WTR defines "rest period" thus:

"'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;"

[18] Daily rest is dealt with in regulation 10, which among other things provides in paragraph (1):

"(1) A worker is entitled to a rest period of not less than eleven consecutive hours in each 24-hour period during which he works for his employer."

Weekly rest is the subject of regulation 11, paragraphs (1) and (2) of which provide:

"(1) Subject to paragraph (2), a worker is entitled to an uninterrupted rest period of not less than 24 hours in each seven-day period during which he works for his employer.

(2) If his employer so determines a worker shall be entitled to either -

(a) two uninterrupted rest periods each of not less than 24 hours in each 14-day period during which he works for his employer; or

(b) one uninterrupted period of not less than 48 hours in each such 14-day period, in place of the entitlement provided for in paragraph (1)."

Rest breaks are treated in regulation 12 which, put shortly, lays down that where a worker's working time is more than six hours he is entitled to a rest break, being an uninterrupted period of not less than 20 minutes which he is entitled to spend away from his workstation, if he has one.

[19] The WTR then deals in regulation 13 with annual leave. Paragraph (1) provides that, subject to paragraph (5), which is not relevant for present purposes, -

"A worker is entitled to four weeks' annual leave in each leave year."

The concept of a "leave year" is dealt with in succeeding paragraphs of the regulation but nothing in these appeals turns on that particular concept. Paragraph 9 of regulation 13 provides:

"(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."

Regulation 14 makes provision for the making of a payment in lieu of leave in the circumstances envisaged in sub-paragraph (b) of paragraph 9.

[20] Regulation 15 is headed "Dates on which leave is taken" and, omitting certain text of no pertinence to this appeal, is in these terms:

"15.- Dates on which leave is taken
(1) A worker may take leave to which he is entitled under regulation 13 ... on such days as he may elect by giving notice to his employer in accordance with paragraph (3), subject to any requirement imposed on him by his employer under paragraph (2).

(2) A worker's employer may require the worker-

(a) to take leave to which the worker is entitled under regulation 13 ...; or

(b) not to take such leave,

on particular days, by giving notice to the worker in accordance with paragraph (3).

(3) A notice under paragraph (1) and (2) -

(a) may relate to all or part of the leave to which a worker is entitled in a leave year;

(b) shall specify the days on which leave is or (as the case may be) is not to be taken and, where the leave on a particular day is to be in respect of only part of the day, its duration; and

(c) shall be given to the employer or, as the case may be, the worker before the relevant date.

(4) The relevant date, for the purposes of paragraph (3), is the date-

(a) in the case of a notice under paragraph (1) or (2)(a), twice as many days in advance of the earliest day specified in the notice as the number of days or part-days to which the notice relates, and

(b) in the case of a notice under paragraph (2)(b), as many days in advance of the earliest day so specified as the number of days or part-days to which the notice relates.

(5) Any right or obligation under paragraphs (1) to (4) may be varied or excluded by a relevant agreement.

(6) This regulation does not apply to a worker to whom Schedule 2 applies (workers employed in agriculture) except where, in the case of a worker partly employed in agriculture, a relevant agreement so provides."

The parties' contentions
[21] In these appeals the Court was assisted by the provision from each of the three parties of a relatively full written argument. The written arguments contain references to a number of authorities, including decisions of the Court of Justice of the European Communities in the general domain of the WTD and also certain domestic decisions. Given the presence in process of those written arguments we do not consider that it is necessary to rehearse the authorities to which reference is made or the observations on them. In summary, the contentions for the parties were as follows.

[22] The UNITE appellants sought essentially to support the reasoning of the Employment Tribunal. What required to be applied was the WTR. In contrast to the WTD the provisions of the WTR did not subsume annual leave into a rest period. The definition of "rest period" given in regulation 2(1) of the WTR separated out "annual leave" from "rest period". So, annual leave required to be something different from a rest period; and therefore had to be a period during which the employee would otherwise be required to work. Bearing in mind that no derogation from the annual leave entitlement was permitted, under either the WTD or the WTR, it was necessary to find a universal, "one size fits all" answer. If it were legitimate for an employer to designate all or part of a rest period as annual leave, that would mean that in the case of a person working a "normal" Monday to Friday work pattern, every Sunday (being additional to the Saturday minimum weekly rest period) could be designated by the employer - under regulation 15 of the WTR - as annual leave. The decision of the Employment Appeal Tribunal in Sumsion v BBC (Scotland) [2007] IRLR 678 confirmed the legitimacy of an employer stipulating that annual leave be taken on single days and showed that it was not unlawful for the employer to stipulate that certain Saturdays be taken as annual leave. Accordingly annual leave required to be taken out of time when the employee would otherwise be working. Since field-break was not a time during which the employee was required to work, it could not be used as annual leave; and annual leave therefore had to be granted out of the weeks when the employee was rostered to be offshore. Counsel recognised that the approach which he advocated presented difficulties in the case of workers such as school teachers, whose annual leave was normally taken during the school holidays, or employees in industrial undertakings in which, for technical reasons, it was necessary to shut down the plant for maintenance or the like and employees were expected to take their leave during that time, when there was no work for them to do. It might well be necessary, said counsel, for arrangements to be made entitling teachers, additionally to the school holidays, to take their four weeks of annual leave during term time. Were the appellants' contention not adopted the result would be that, for the majority of workers, no benefit would be conferred on them by the WTR.

[23] Counsel for the OILC appellants took an approach which in certain respects departed from that adopted by counsel for the UNITE appellants. In common with the latter, counsel for the OILC appellants submitted that the extension of the original directive to offshore working should mean something for offshore workers' rights and that, were the respondents correct, nothing would be achieved for most offshore workers by the extension of the scope of the WTD to offshore work. Counsel drew attention to the views expressed by the Advocate General (Tizzano) at paragraph 22ff of his Opinion in Case C-173/99 R v Secretary of State for Trade and Industry ex parte Broadcasting Entertainment Cinematographic and Theatre Union - "BECTU" - [2001] ECR I-4881 as to the fundamental nature of the right to paid annual leave. It could not be right to adopt a simple arithmetic approach whereby, having accounted for minimum rest periods in the week, all other non-working time was available for designation by the employer as annual leave; that would allow designation of Sundays as annual leave for those who worked Monday to Friday. But the UNITE approach was also wrong. Account had to be taken of the pattern of working. The focus should be on the quality of the time off. For the normal onshore worker who worked Monday to Friday weekends were simply not the same as going on holiday. Weekends were normal time off for such an onshore worker. By contrast annual leave involved the feeling of getting time off from the normal routine - in counsel's words, the feeling of "Gosh, I'm off work and on holiday". Offshore workers had a routine equivalent to such an onshore worker who had weekends off, namely his offshore field-break weeks. Thus the offshore worker required to be liberated from that routine or pattern of work by being given annual leave out of rostered weeks, and not field-breaks. As respects workers such as teachers, they got that necessary subjective feeling of freedom from commitment when the schools closed for the school holidays.

[24] Mr Jones, for the employers, stressed at the outset of his oral submissions the point more fully discussed in the respondents' written argument to the effect that the purpose of the WTD, and thus the WTR, was to lay down minimum standards in the organisation of working time in the interests of the health and safety of workers and the wider community. Plainly, many workers might already enjoy those standards. Thus, by way of example, a worker who already worked a working day of fewer than 13 hours and fewer than 48 hours in the week would not get any advance on the standards set by the WTD and the WTR because that worker already enjoyed superior working conditions.

[25] The argument for the respondents next noted the different cycles of working hours envisaged by the WTD. In summary, Articles 3 and 4 involved the daily cycle whereby the working day was capped at 13 hours (with provision for rest breaks). Articles 5 and 6 addressed the weekly cycle, providing for a cap of six working days and the further cap of a maximum number of working hours (48 hours). So when one moved to the annual level it was to be expected that the provisions for that aspect of the organisation of working time would be shaped by the preceding provisions and address the provision of rest on an annual basis by providing a similar cap on the number of weeks in the year in which an employee could be required to work. In other words, in view of the need to provide for four weeks of annual leave, the maximum working year had a similarly envisaged cap of 48 working weeks.

[26] Accordingly, Mr Jones for the respondents submitted, the entitlement of the employee was essentially to leave "in weekly chunks". The respondents did not contend that an employer was entitled to designate as annual leave non-working days within a week which the employee was at work and which were superfluous to meeting the weekly rest provision. Thus it was not contended that in the example of a "normal" Monday to Friday working week the employer could dictate that one of either Saturday or Sunday be attributed to annual leave. To that extent much of the argument for the UNITE appellants and possibly also the OILC appellants proceeded upon a misconception of the respondents' position.

[27] The WTD and the WTR gave an employee a minimum entitlement to four weeks leave but the employee did not necessarily require to take leave on a basis of week long instalments. He could for example choose to take a series of long weekends or elect for individual days. But, the employer could not require the unwilling employee to take annual leave on such a basis. Regulation 15 of the WTR was concerned with dates, but did not undermine the respondents' contention that entitlement to annual leave was prima facie to be measured in periods of a week.

[28] In the case of the appellants it was clear that they were provided with substantially more than four weeks off work in each year. Subject to the de minimis possibility of training courses, grievance procedures and the like, and any compensatory rest, each appellant had within his or her 26 weeks of onshore field-break at least four weeks of remunerated time when there was no obligation on the employee to work or to be available for work. The appellants' construction involved an illegitimate "labelling exercise" which sought to characterise or label field-break as a "rest period" in terms of the WTR definition, but one was not concerned with such labelling. The question was whether, given that the appellants had 26 remunerated weeks in every year in which they were not at work, or on call, the minimum requirements were met. They plainly were, and labels had no significance.

Discussion
(1) Interpretation of the WTD

[29] In our view it is appropriate to take as a starting point the provisions of the WTD. Parties were in agreement that in construing the implementing legislation contained in the WTR regard should be had to the WTD and that the WTR should be interpreted, so far as possible, in conformity with the wording and purposes of the directive which it sought to implement (cf. Litster &c v Forth Dry Dock and Engineering Co Ltd 1989 SC (HL) 96; Case C-106/89, Marleasing S.A. v La Commercial Internacional de Alimentacion S.A. [1992] E.C.R. I-4135; Joined cases C-397-403/01 Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut e V [2004] E.C.R. I-2835). Reaching a view on the proper interpretation of the WTD is thus an appropriate prior step to any consideration of the terms of the WTR.

[30] It was also generally accepted that the WTD was an instrument of social policy directed primarily to protecting the health and safety of workers while at work (cf. recitals 2 and 4) and that the particular protection envisaged was set out in recital 5 to the preamble which, for convenience, we rehearse:

"All workers should have adequate rest periods. The concept of 'rest' must be expressed in units of time, i.e. 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."

[31] Counsel for the OILC appellants however appeared to dispute whether the WTD was concerned only with minimum standards. He stressed that the right to annual leave stemmed from the Charter of Fundamental Rights, which was given binding effect following the entry into force of the Lisbon Treaty; and that the WTD was now an instrument flowing from the chapter of EU Treaty on social rights and workers conditions. No derogation from the provisions on annual leave was permitted, a point most recently reiterated by the Court of Justice in its judgment of 22 April 2010 in case C-486/08 Zentralbetriebstrat der Landeskrankenhäuser Tirols v Land Tirol. From this we understood counsel to draw the proposition that the WTD was not simply about health and safety; it was about improving workers' conditions of employment. Accordingly, again as we understood the submission, the extension of the application of the WTD to offshore work had to mean something for the rights of those workers; and since the respondents' argument meant that the WTD had no practical effect on their employment conditions, that argument must be wrong. Within the argument for the UNITE appellants, there was a similar suggestion that the WTD should be taken as giving something material to workers, irrespective of their existing employment terms and conditions.

[32] We are unable to accept these contentions. While the requirement under the WTD for the provision of a minimum amount of annual leave may have its parallel in the Charter of Fundamental Rights, it remains in our view an entitlement - even if "fundamental" - which is directed to the safety and health of the worker (and those affected by that state of health) and hence to the provision of adequate rest. The WTD plainly seeks to impose minimum standards applicable in each Member State. It is thus to be seen as a harmonising measure (cf paras. 37 and 38 of the judgment of the Court of Justice in case C-173/99 R v Secretary of State for Trade and Industry ex parte BECTU, sup.cit.). Thus plainly many (if not most) workers within the European Union may enjoy existing employment conditions more favourable to them than those minimum harmonised standards. To give but one example, many employees work for fewer than 48 hours per week, so they will not "benefit" from Article 6 of the WTD. We therefore consider that the WTD does not fall to be construed from the perspective that it should bring about an improvement to existing employment conditions of a given worker.

[33] Moving on from general or preliminary matters to a more detailed consideration of the proper interpretation of the terms of the WTD, we find force in the analysis advanced on behalf of the respondents to the effect that the structure of chapter 2 of the WTD involves different cycles of working time. In summary, Articles 3 and 4 are concerned with the daily cycle of work and Articles 5 and 6 are devoted to the weekly cycle of work. Thus Article 3 limits the maximum number of working hours in a 24 hour period to 13 hours, with provision for rest breaks within that maximum being set out in Article 4. Article 5 limits the number of working days in a 7 day period to 6 days; and Article 6 provides a further limit of a maximum number of working hours (48 hours) in that weekly cycle. Given the structure thus followed one might expect that Article 7, dealing with annual leave, should be concerned with the yearly cycle and that it would seek to cap or limit the number of working weeks.

[34] On our reading of the WTD that is indeed what Article 7 does. In our view it is of some significance for the interpretation of Article 7 that in the immediately preceding two articles the WTD adopts the - no doubt commonly recognised - notion of a working week, being a "7-day period", in which not every day will be a working day. When one then comes to Article 7 it is, we think, logical and appropriate to regard the reference to "4 weeks" as being a reference to the same notion of a recurring 7-day period in which some days, not exceeding 6, will be days of work. In other words, having recorded that the notion of adequate rest must be expressed in units of time, the WTD employs the notion of a regular 7-day cycle, whether commencing on Monday or any other day of the week. Accordingly we see Article 7 of the WTD as requiring that there be provided to the worker within the year (which need not be a calendar year), at least four remunerated weeks of the weekly cycle in which he is free from work commitments.

[35] On that reading of the WTD, those particular days during the employee's seven day working week on which the employee does not actually work are not generally reckonable towards annual leave. The point is perhaps best illustrated by the example, canvassed in argument, of the part time worker who may work three days per week - say Monday to Wednesday inclusive. Were the employer entitled to treat Thursdays as being weekly rest and Fridays and the weekend as annual leave, that would have the effect of requiring that part time worker to attend for work on each of the 52 weeks of the year. That, in our view, would infringe what is required of Member States by Article 7 of the WTD. What that article requires is that, within the leave year, there are at least four weekly cycles in which the part time worker is not required to turn up and put in his part time hours. We would add that while the part time worker thus obtains four weeks in which he does not require to attend for work, the pro rata temporis principle still applies, because in terms of days of annual leave the part time worker receives the appropriate proportion of that which would be received by the full time worker within that weekly cycle.

[36] If the WTD is construed in that way, it appears to us that what counsel for the UNITE appellants described as "problem cases" largely cease to be problematical. The part time employee to whom we have just referred was cited by counsel as such a case. The other problem cases were essentially employees such as teachers and workers for whom - for technical or traditional reasons -holidays had to be taken in the weeks when respectively the school was on holiday or the plant was shut down. But if the school holidays, or the technical shut down, or the tradition in the trade, result wholly or partially in a four week release from the weekly working cycle, it is not difficult to see that release as counting towards the minimum requirement annual leave in terms of Article 7 of the WTD. There is nothing in the WTD to suggest that employers may not arrange matters so that annual leave is taken during the school holidays or such similar industrial equivalent.

[37] Applying that reading of the WTD to the situation of the present appellants, we consider that their contention as respects annual leave is unsound. It is not disputed that their working time is basically configured in weekly cycles and that in the working year for 26 such cycles (subject to the de minimis matters to which earlier reference was made) their time is entirely their own. Put conversely, their requirement is to work for about 26 weeks every year. Plainly that requirement does not constitute an infringement of the cap, or limit, on the number of working weeks in the year set by Article 7 of the WTD as 48 weeks. That the 26 weeks "onshore" are termed as field-break is not a matter upon which, in our view, anything would turn.

[38] In reaching the foregoing conclusion, we do not overlook a submission from counsel for the UNITE appellants which was based on a textual comparison of the terms of the definition of "adequate rest" as contained in Article 2(9) of the body of the WTD and the terms of recital 5 of the preamble. As we understood it, the submission was to the effect that the employers' view that entitlement to annual leave was to leave in "weekly chunks" required to rely on Article 2(9), which did not fit with recital 5; the term "adequate rest" did not otherwise appear in the operative provisions of the WTD; and so recital 5 was on account of the absence of any reference in the body of the WTD wrongly invoked as enabling an interpretation favourable to the respondents. Insofar as this submission proceeded upon the basis that the term "adequate rest" was not otherwise deployed in the WTD, it is not correct since the term is deployed in Article 20, respecting mobile workers. That apart, and put shortly, we are unable to find any substance in this submission. There is in particular no reason to read a part of the preamble as derogating from a specific definition contained within the operative part of the directive.

[39] We would further add that the interpretation of the WTD which we favour does not involve the introduction of any subjective element relating to the quality of "time off" as proponed by counsel for the OILC appellants. In our view the WTD seeks to avoid the introduction of concepts of quality of time off in the notion of adequate rest. This emerges clearly from recital 5 which records that the "... concept of 'rest' must be expressed in units of time ...". Expressing "rest" solely in terms of time provides an objective standard which can be readily applied and is appropriate and understandable in a directive which is intended as a harmonising instrument.

(ii) Reference for a preliminary ruling

[40] The possibility of making a request to the Court of Justice of the European Union for a preliminary ruling on the interpretation of the WTD was floated in both the written and oral arguments. It was accepted that, not being a court to which the third alinéa of Article 267 of the Treaty on the functioning of the European Union
[3] applied, whether to make such a request was a matter for this Court's discretion in terms of the second alinéa of that article. It was, of course, also accepted that it was part of the function of national courts to interpret and apply European law. None of the parties expressed much enthusiasm for making a request. While none of the decisions of the Court of Justice to which reference is made in the written arguments is directly in point, we do not see any inconsistency between those decisions and the interpretation which we favour. We would add that counsel for the UNITE appellants, who showed perhaps the least lack of enthusiasm, was not able to offer a question or questions for referral relating to the interpretation of the WTD as opposed to the WTR. For completeness we would record that we were supplied with the text of the WTD in a number of the official languages
[4]. We do not find anything in those other authentic versions of the WTD which provides linguistic grounds for questioning the construction reached on a consideration of the English text. In these circumstances we have concluded that we should not request a preliminary ruling from the European Court in Luxembourg.

(iii) The WTR

[41] Given the result at which we have arrived in construing the WTD, the issue in these appeals then comes to be whether the terms of the WTR impose a different result, notwithstanding the interpretative considerations to which reference is made in paragraph [29] above.

[42] As already indicated, to a material extent the argument for the appellants, particularly the UNITE appellants, proceeded upon a textual analysis based upon the fact that the WTR departed from the WTD in defining, in regulation 2(1), "rest period" as being:

"... a period which is not working time, other than a rest break or leave to which the worker is entitled under these regulations;".

Put shortly, the contention was that field-break was a "rest period" for the purposes of the WTR and hence could not be designated as annual leave.

[43] In our view the definition set out in regulation 2(1) of the WTR should be seen in the light of the particular regulatory context in which that defined term is deployed in that instrument. The WTR term "rest period" is deployed only in regulation 10 (daily rest); regulation 11 (weekly rest period); and regulation 17 (entitlement to take the more favourable of the statutory or any contractual provision). In light of those limited contexts, we do not see the WTR definition of "rest period" as being in conflict with our reading of the WTD. Daily and weekly rest periods within a working week in which the employee actually works do not - in our interpretation of the WTD - count towards his entitlement to annual leave. But given the particular deployment in the WTR of the defined term "rest period", there is in our opinion nothing in the WTR which requires a working week in which the employee does not work and is not required to work to be treated as being a "rest period" for the purposes of the WTR. Accordingly, in our view, it does not follow that every week of field-break is a "rest period". In other words, the way in which "rest period" is defined and applied in the WTR does not lead to the conclusion that field-break should not be regarded as being capable of constituting annual leave.

[44] We turn now to regulation 15 of the WTR and in doing so note first that regulation 13(1) gives the employee an entitlement to leave rather than a requirement on him to take annual leave; and that his entitlement may be exercised in instalments (regulation 13(9)). The provisions of regulation 15(1) reflect that entitlement and supplement it by, in effect, setting out that the entitlement may be exercised by the employee giving notice to his employer of the dates when he would wish to be on leave, "subject to any requirement imposed on him by his employer under paragraph (2)". That paragraph envisages the employer's giving notice requiring the employee to exercise his entitlement to leave on particular days. Paragraphs (3) and (4) relate to the nature of the notice, whether given by employer or employee, and its timing.

[45] Regulation 15 does not stipulate that notice, whether given by the worker or by the employer, be in writing. Oral communication of respective positions would therefore appear to be sufficient. Regulation 15 does not envisage any immediate mechanism for the resolution of disputes over dates, nor does any other provision of the WTR. It is thus perhaps not entirely clear what real purpose is served by the detail of the provisions of regulation 15, other perhaps than indicating (by the concluding phrase of paragraph (1) of the regulation) that the employee's choice of date or dates is subject to the employer's requirements.

[46] All of that said however, it is our view that regulation 15 is simply concerned with the fixing of dates for taking annual leave. It does not intrude into the nature and concept of annual leave as provided for in the WTD and WTR. In particular, we do not see the provisions of regulation 15(2) as enabling an employer (against the wishes of the employee) to controvert the fundamental entitlement to four weeks of annual leave by stipulating that non-working days within the weekly working cycle (typically Saturdays and Sundays) must be treated as annual leave. The accepted need to construe the WTR consistently with the WTD would in any event point in the direction of reaching that view of the proper construction of regulation 15. Accordingly, we do not accept that the argument for the appellants derives assistance from regulation 15 of the WTR.

[47] In reaching its conclusion, in paragraph 300 of the judgment, that "leave" in regulation 13 of the WTR involved a "release from what would otherwise have been an obligation to work" the Employment Tribunal bore to find support in the judgment of the Court of Appeal in England and Wales in Inland Revenue v Ainsworth [2005] EWCA Civ 441; [2005] ICR 1149 and in the decision of the Employment Appeal Tribunal in Scotland in Sumsion v BBC (Scotland). Both of these authorities were to some extent relied upon by the appellants in the argument before us.

[48] The first of those cases was concerned with the question whether an employee absent from work on long term sickness leave was yet concurrently entitled to annual leave and the Court of Appeal answered that question in the negative. In paragraph [11] of his judgment Maurice Kay LJ (with whom the other members of the bench agreed) accepted a submission for the employer (narrated in paragraph [8]) to the effect that a key word in regulation 13 WTR was "leave" and that the natural meaning of "leave" connoted a release from what would otherwise be an obligation; and that the rhetorical question "leave from what?" posed by counsel for the employer could only be answered adversely to the employee.

[49] We would observe first that insofar as linguistic emphasis was placed on the word "leave" as prompting that rhetorical question it does not sit at all happily with the fact that in some other language versions of the WTD phrases equivalent to "holidays" are used
[5]. With that in mind, we for our part do not see any reason why in ordinary, contemporary English usage "leave" in this context should not simply connote a period in which the employee is free from work commitment. It is the existence of such freedom which counts, from the point of view of the provision of rest. "Field break" may thus just as easily be a setting for leave as a week in which an employee would otherwise be at work. Such an approach avoids the absurd results inherent in the argument for the UNITE appellants in the case of teachers and annual shut-down trades, which counsel for those appellants recognised as "problematic". Secondly, and perhaps more importantly, the conclusion reached by the Court of Appeal was effectively negatived in a subsequent preliminary ruling delivered by the Court of Justice at the request of the House of Lords in Joined Cases C-520/06 and C-350/06 Stringer v HM Revenue & Customs; Schultz-Hoff v Deutsche Rentenversicherung Bund [2009] ECR I-179. This ruling was of course given after the Employment Tribunal had given its judgment. In these circumstances we do not consider that Ainsworth assists the appellants.

[50] In Sumsion the employee had concluded a six-month fixed term contract which required him to work, or to be on call, for six days in each week - Monday to Saturday inclusive; but the contract also provided that he would be "entitled to six days' leave to be taken ... on any sixth non-scheduled day in a week during pre-production, shoot and clear". (The employee was engaged as a standby carpenter by the BBC on the production of "Sea of Souls".) The position thus appears to us to have been that the parties agreed by contract that on those Saturdays on which no work was in fact scheduled (which might perhaps be taken as equivalent to the plant shut down for technical reasons) the Saturday would be taken as part of the employee's entitlement to annual leave. The facts of Sumsion are therefore somewhat special or peculiar. The contract was an unusual, short-term contract; it might have been seen as an employee's election of leave days under regulation 15(1) of the WTR. We also note the terms of paragraph 26 of the judgment of the Employment Appeal Tribunal and in light of those terms we think that the judgment can be read in a way which does not involve endorsing the proposition that an employer is entitled to require that non-working days within a weekly cycle in which the employee has worked be counted towards annual leave. Moreover the decision also proceeded (see paragraph [30]) on the Court of Appeal's decision in Ainsworth and was given prior to the further developments in the Ainsworth case to which we have referred in the immediately preceding paragraph. In these circumstances we do not find in the reasoning of the Employment Appeal Tribunal in its decision in Sumsion, or what is said about that decision by the Employment Appeal Tribunal in the present appeals, anything which dissuades us from the views which we have earlier expressed.

[51] Accordingly, 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.

[52] On the central issue the appeal therefore fails and will be refused. There are however some subsidiary matters, we think only in the cases of the appellants other than Mr Price and Mr Robertson, which were not addressed by the Employment Appeal Tribunal and in these circumstances we think the better practical course is to put the case out "By Order" for a consideration of the subsidiary terms of our interlocutor.