Appeal No. UKEAT/0042/06/MT

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
On 21 March 2007

Before
THE HONOURABLE LADY SMITH
MISS J GASKELL
DR W SPEIRS

MR D SUMSION	APPELLANT

BBC (SCOTLAND)	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	Mr Brian Napier, 
One of Her Majesty’s Counsel 
Instructed by:
Messrs Thompson Solicitors
Berkeley House
285 Bath Street
Glasgow
G2 4HQ	
For the Respondent	Mr James Laddie, of Counsel
Instructed by:
BBC Litigation Department,
Room MC3 C5 Media Centre
201 Wood Lane
London
W12 7TQ

SUMMARY

The claimant was employed to work as a standby carpenter by the respondents, for the production of “Sea of Souls”, for a period of some 24 weeks. His contract provided that his services would be required for up to 6 days each week and that regarding leave, he was entitled to 6 days of leave, to be taken, in the absence of agreement to the contrary, on any 6th non-scheduled days in a week. An issue arose as to whether these arrangements meant that the respondents were not meeting their obligations under paragraph 13 of the Working Time Regulations 1998. The Tribunal took the view that the claimant’s contract required him to work six days each week, that the regulations did not restrict an employer in his right to stipulate the days when annual leave could be taken and that there was, accordingly, no breach of the regulations.

The Employment Appeal Tribunal agreed and the appeal was dismissed. 

THE HONOURABLE LADY SMITH

Introduction 
1.	This appeal concerns Saturdays and the Working Time Regulations 1998. Mr Sumsion is one of a group of eight BBC employees who have challenged the BBC’s right to require them to take their leave on stipulated Saturdays. It was agreed that evidence would only be heard in his case and we note that it, accordingly, is being treated as the lead case of the group.  The claim was presented to the Employment Tribunal sitting at Glasgow, a hearing took place on 9 November 2005 before a Chairman, Mr R A Mackenzie and two members, and judgment was issued on 7 March 2006. 

2.	The parties were both represented by counsel before the Tribunal. We propose to refer to parties as claimant and respondents.

Background 
3.	The essential facts were not in dispute. The claimant was employed under a contract with the respondents as a standby carpenter to work on the production of “Sea of Souls”. It was agreed that he was a worker. The period for which he was employed was 5 May 2003 to 26 October 2003. He was entitled to be paid £1200 per week throughout the duration of the contract. His contract included the following:
“It is anticipated that your services will be required for up to 6 turns of duty per week (including leave if any under the Working Time Regulations)  and that the average shooting day from on set ready to rehearse/shoot to unit wrap will be 11 hours ( including lunch). There will prep, clear up and travel outside these hours. The salary is all inclusive for this work required ……….
If an additional day is required for reasons of additional work not originally envisaged under the contract the weekly fee will be enhanced by £200 per day for each extra full day worked……..
………………..
……….your working pattern may exceed 48 hours per week and so you will need to agree to disapply the weekly working time limits under the Working Time Regulations ……………..In addition you will be entitled to 6 days leave to be taken, unless otherwise agreed with the Associate Producer, on any 6th non-scheduled days in a week during pre-production, shoot and clear.” 

4.	Given that 5 May 2003, the start date for the contract, was a Monday, the reference to the 6th day of the working week must be taken to have been a reference to a Saturday. That is certainly the basis on which the contract was operated.

5.	By letter dated 1 September 2003, the claimant requested that he be allowed to take the leave due to him in one unbroken block before the end of the production and his request was turned down.  That refusal was what, it seems, gave rise to the claimant’s complaint. We note, for instance, that it was stated in the written submission that was presented to the Tribunal on his behalf that it is stated at paragraph 6 that it was the inability to take holidays in anything other than single individual days of leave each fortnight that provoked the present challenge to the legality of the respondents’ practice. 

6.	In practice, the respondents sought to discharge their obligations to the claimant in respect of his leave entitlement by requiring him to take every second Saturday off as a leave day although, on a couple of occasions, he did in fact work on days that had been stipulated as leave days. We were advised that he was given days off in lieu when that happened. 

The Issue 
7.	Parties were agreed that the issue for the Tribunal was as follows:
When a worker, engaged as an employee on a fixed-term contract, is required by his employer to take leave on a day which is a non-scheduled production day, i.e. a day when he would not otherwise be required to work or attend for the purposes of work, whether that “day off” constitutes a day of annual leave for the purposes of the worker’s entitlement under regulation 13 of the Working Time Regulations (“WTR”). 

However, when the matter came before us, the issue was termed somewhat differently on behalf of the claimant. It was put by Mr Napier as being:
To what extent in a weekly based employment relationship may an employer legitimately make use of Saturdays to meet his statutory obligation to provide annual leave under regulation 13 of the Working Time Regulations 1998?

The Working Time Regulations 
8.	Paragraph 13(1) of WTR provides:
“Subject to paragraph (5) a worker is entitled to four weeks’ annual leave in each leave year.”

9.	Paragraph 13(5) provides:
“Where the date on which a worker’s employment begins is later than the date on which (by virtue of a relevant agreement) his first leave year begins, the leave to which he is entitled in that leave year is a proportion of the period applicable under paragraph (1) equal to the proportion of that leave year remaining on the date on which his employment begins.”

10.	Paragraph 13(6) provides:
“Where by virtue of paragraph (5) the period of leave to which a worker is entitled is or includes a proportion of a week, the proportion shall be determined in days and any fraction of a day shall be treated as a whole day.” 

11.	Paragraph 13(9) provides:
“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.”

12.	Then, significantly for the present case, paragraph 15 provides:
“(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) or (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………” 

The Tribunal’s Decision 
13.	The Tribunal decided that the respondents were not in breach of WTR. They took the view that the claimant’s contract required him to work six days each week, including Saturday.  Had the respondents not stipulated the days of leave that were to be taken, the claimant could have requested to take those Saturdays as leave days. At paragraph 25 of the judgment they state:
“We see no provision in the WTR which restricts the right of an employer to stipulate when annual leave shall be taken or the duration of the leave taken at any one time provided the days when annual leave was to be taken were days when the worker was contracted to work for the employer. A worker could request his employer to take his annual leave in individual days when he would otherwise be working.” 

The Appeal 
14.	We have already referred to the issue addressed on behalf of the claimant in this appeal. 

15.	It was submitted on behalf of the claimant that the Tribunal’s interpretation of the Regulations was wrong in law and inconsistent with the parent European Council Directive (93/104/EC) which sought to improve working conditions and to further health and safety. Although the claimant was required to be available for a whole “turn of duty” on a Saturday, he was required only to work, on average, a half day on that day. Every other Saturday, he was only required to be at work for the purposes of taking his holiday. Thus his leave days did not count as leave days at all since the claimant would not have worked on them – he was only obliged, otherwise, to make himself available for work on those days. It was not open to the respondents to meet their obligations to provide leave by deeming Saturday to be a day of work when it was not and then saying that it was to be a day of leave.

16.	Considerable stress was placed on an apprehension that if the Tribunal’s decision was upheld then it would allow exploitation by the unscrupulous employer of a loophole in the law relating to paid annual leave. It was not suggested that these respondents were unscrupulous or ill motivated but advantage might be taken by other employees who, in the way they conducted their business, never intended to operate on Saturdays yet included a provision in their contracts of employment that an employee required to be available on Saturdays so as to nominate Saturday as a day of leave. That was contrary to a tradition which did not regard Saturday as a normal working day. Much reliance was placed by Mr Napier on what he said was that tradition.  Different economic results could be demonstrated as between an employer in a six month contract who, say, required 5½ days per week of productive work and allowed 11 days leave on days when the employee would otherwise be engaged in productive work and an employer in a six month contract who required 5½ days of productive work, availability for work up to 6 days each week and allowed 12 days of leave. In the latter case, which Mr Napier submitted was a parallel to the present case, the employer would get more days actual work from the employee for less cost. It followed that there would be a financial incentive for employers to exploit the sort of system that had been operated in the present case. 

17.	The solution, in Mr Napier’s submission was to construe regulation 15(2) in respect of a worker who is employed on a weekly basis so as to provide that an employer may not specify, for the purposes of that regulation, a Saturday or Sunday or part thereof, to be a leave period for the purposes of meeting the leave requirement that arises under regulation 13(1), save when work would (but for the period being a designated period of leave) have been required of the worker on that day or part day.  Such an interpretation should be followed, he said, even if there was a contractual obligation for the worker to make himself available for paid work on that day or part of that day. 

18.	Thus put, the claimant’s argument sought to elide the criticism that was made of it which focused on the types of employment where leave is taken during a “down” period, such as the cases of seasonal workers or teachers or trades workers in Edinburgh and Glasgow. The problem there would not be the “Saturday” problem relied on by Mr Napier. 

19.	Reference was also made to the case of Inland Revenue Commissioners v Ainsworth [2005] IRLR 465 CA, although we were not entirely clear what it was that the claimant sought to take from it; the claimant did not make acceptance of that proposition that was approved there the basis of his case before the tribunal and it was not made the basis of the case on appeal. 

20.	For the respondents, Mr Laddie drew attention to the genesis of this case being that the claimant had asked if he could take all the leave due to him in one unbroken block before he finished working on the production. His complaint was not, at that time, that his contract required him to take leave on non-scheduled Saturdays. Rather, his complaint was that he was being required to take his leave in single days. Then, in his Tribunal application, what he complained of was that the respondents were seeking to treat days when he was not required to work as days of annual leave. Again, there was no particular complaint about being required to take leave on a Saturday.  The argument now presented was a new and much narrower one. 

21.	Mr Laddie explained that the way the contract operated was that whilst the respondents could have insisted on the claimant working 12 days in every fortnight and then complied with their WTR obligations by making a payment of holiday pay to him at the end of the production, they decided to have employees including the claimant take annual leave as the production went along. Hence the arrangement whereby every second Saturday was a non-scheduled day, so as to allow for leave. The respondents should be applauded for this approach, not criticised. They implemented both the letter and spirit of the parent directive in so doing and had complied with the requirements of regulation 15. It had never been alleged that the contract was a sham. Under reference to the discussion in the case of Robinson–Steele v RD Retail Services Ltd [2006] ICR 932 paras 98 -99(AG) and 51-2 as to how rolled–up holiday could be used as a sham to deprive an employee of real paid leave, Mr Laddie submitted that an example of a sham in the present context would be if prior to the coming into force of the WTR a worker had been employed for 5 days per week at, say £1,000 and after their coming into force, the employer varied the contract so as to require the employee to be available for 6 days for the same pay. That would clearly be a sham but the present case was not. Here, what was happening was that the claimant was looking for a windfall payment of £200 for every “leave” Saturday in addition to what he had already been paid for those days. 

22.	Mr Laddie submitted that there was no “magic” about Saturdays on which the claimant could rely. There was in fact no tradition that Saturday was a non–working day. What would be the difference if an employer decided to nominate Wednesdays as leave days? The claimant sought to create a false sense of placing undue emphasis on Saturdays. As for the examples of different economic results put forward by Mr Napier, they did not compare like with like and, in any event, the cost to the employer and the salary level secured by an employee were both irrelevant to the working of the regulations.

23.	In summarising his submissions, Mr Laddie said that the claimant’s contract was a 6 day per week contract, the respondents could have required him to work on a series of Saturdays, they had complied with regulation 15 (which the claimant’s argument failed to consider) and there was no substance to the claimant’s appeal.

Discussion 
24.	We have no difficulty in agreeing with the Tribunal that the respondents had complied with their obligations under the WTR to provide paid annual leave. 

25.	As it lay at the heart of the claimant’s case before us, we should consider first the matter of, as Mr Laddie put it, the “magic of Saturdays”. Contrary to what was suggested by Mr Napier, we cannot accept that present day working in the United Kingdom involves a norm of non-Saturday working that is of such substance as to make Saturday working exceptional. We, particularly the lay members amongst us, could think of many areas of work which involve routine Saturday working including the retail industry, the health service, the leisure industry and transport services to name but a few. In many of these cases, a 6 day working week (which is not contrary to the WTR) is the norm. Also, in many of these cases, there is a contractual arrangement whereby on one or more days of the working week, possibly a Saturday, the employee has to be available for work but may not actually, in the end of the day, be called on to work. 

26.	In short, like most magic, the idea that Saturday is, in present day society, ring fenced to exclude work, is, it seems, but an illusion. There cannot, therefore, be any assumption that an employer who makes a regulation 15(2) requirement that leave be taken on a Saturday is doing so in furtherance of a sham or that such leave is not “real” leave. That is not to say that there may not be cases in which, if the whole facts and circumstances are examined, it can be demonstrated that the employer, in nominating Saturday as a leave day is not affording real leave at all. The circumstances suggested by Mr Laddie as demonstrative of a sham would be an example of such a case. But it must, in our view, be a matter of examining the particular facts and circumstances of each case.

27.	When the circumstances of this case are examined, it is appropriate to note firstly that the contract provided that the claimant’s services would be required “for up to six turns of duty per week”. The respondents could, accordingly, have run the contract in such as way as to require the claimant to provide carpentry services on six days each week, subject to their commitment to afford leave to the claimant on any 6th day that they made a non-scheduled day during pre-production, shoot and clear. Thus, had they decided to run the contract so as make every Saturday a scheduled day, the claimant would have had to work every Saturday and the respondents would have required to address their obligation to afford him paid leave or holiday pay at the end of pre-production, shoot and clear (if that was the end of the contract).  He was to be paid £1200 per week. If he worked any days in addition to the six turns of duty, he would be £200 for each such day. The implication seems clear that he was, in a normal week, being paid £200 for each of those six days. We agree, therefore, with the Tribunal’s conclusion at paragraph 24 that the claimant was required in terms of his contract to work each Saturday and had there been no regulation 15(2) notice by the respondents, he could have requested to take a day of annual leave on any Saturday during the contract. 

28.	On the claimant’s approach, the “leave” Saturdays did not qualify as real leave because they were Saturdays when the claimant had but to, otherwise, only make himself available for work. Thus what he seemed to be saying was that only days on which it is determined in advance that the worker will definitely be required to go into work can qualify as leave days. That would mean, of course, that “on call” days would not be available to either employer or employee as leave days.  It also ignores the mutuality inherent in the fact that by nominating an “on call” Saturday as a leave day, the employer foregoes what would otherwise be his right to call the employee in on that day (as in fact happened on a couple of occasions in the claimant’s case) and relieves the employee of the obligation to keep himself available. 

29.	Further, we cannot see that the “Saturday issue” can be separated out in the way that the claimant seeks to do. It was inherent in his approach that the day nominated was not a leave day because as a matter of fact, the employee would not have been called in to work as production did not take place that day, irrespective of the fact that his contract provided that he could have been called in.  We cannot see that the argument logically confines itself to Saturdays. It would apply equally to other types of employment where the employer decides that the best way to run his business is to give all employees their leave at the same time and then closes the business or part of it during that period of leave. An obvious example is what happens when the “trade fortnights” occur in July in Edinburgh and Glasgow (during which time it can be very difficult to get a plumber). The logical extension of the claimant’s argument would be that those tradesmen are not being afforded real leave at all during those fortnights and are entitled to two weeks paid leave in addition to that taken at that time.  Then there are schools; teachers generally take leave during the various school holidays when there are no children at school to teach. Again, the logical extension of the claimant’s argument would be that teachers would require statutory paid leave during term–time, when there were children at school to teach, in addition to the regular holiday periods already taken. Lord Steyn’s comment in Malik & Mahmud v BCCI 1998 AC 20, at paragraph 48, that “If a train of reasoning leads to an unbelievable consequence, it is in need of re-examination”, comes to mind.

30.	Against that background, is there anything in the WTR, reading them in conjunction with the parent directive that indicates that it is not open to an employer in a contract such as this one to stipulate that leave is to be taken in single days on certain Saturdays? We do not see that there is. It is plain that it is open to an employer, if so advised, to give notice that specified single days will be leave days. Indeed, such has long been the practice, we understand, at certain factories in respect of Monday holidays. There is, further, nothing in the regulations to restrict the days which an employer can nominate as leave days. Nor does the above approach run counter to that which, thus far, has been approved in the case of Inland Revenue Commisioners v Ainsworth to the effect that the natural meaning of the word “leave” connotes a release from what would otherwise be an obligation. The claimant was, in this case, being released, on alternate Saturdays, from his obligation to be available for work. 

31.	Finally, we should add that the construction of regulation 15(2) that was proposed by Mr Napier would, in our view, involve a wholly unwarranted rewriting by us of its terms. Those terms are clear and they are consistent with the objectives of the parent directive which neither prevents leave being given or taken in separate days nor makes any special provision for any day of the week, including Saturdays. To do as Mr Napier would have us do would involve an exercise of creation not one of construction and it is not, in our view, an exercise which is open to us. 

Disposal 
32.	In the foregoing circumstances, we will dismiss the appeal.