Mr Sumsion was employed by BBC Scotland as a carpenter for a production set for a 24-week fixed period. He was required to be available for six days each week, and was entitled to six days’ annual leave during the fixed period which, unless otherwise agreed, should be taken “on any sixth non-scheduled day in a week”.
The BBC’s intention was that where he was not required to work on a Saturday (which was taken to be the sixth day in the week), this should be taken as annual leave.
Sumsion wanted to take all his leave in one block before the end of the contract. However, this was rejected. In practice, the BBC required him to take every second Saturday off as leave. Sumsion brought a claim on the basis that the BBC was in breach of the Working Time Regulations (WTR) by operating holiday in this way.
The tribunal found that the WTR did not restrict an employer’s right to stipulate when leave must be taken, or the duration of that leave. Sumsion appealed. He argued that an employer should not be able to deem Saturday (or Sunday) to be a working day, when in reality, it would not otherwise have been so, and then require leave to be taken on that day.
The Employment Appeal Tribunal (EAT) found that Sumsion’s argument was that, effectively, leave days could only be taken on days on which it is determined in advance that the employee will be required to work. The EAT noted that the logical conclusion of this argument would result in teachers being unable to take their statutory holiday in the school holidays. Instead, they would have to take paid leave during term time in addition to the regular holiday periods already taken.
The EAT also found that there was nothing restricting the days that employers could nominate as leave days, nor was there anything preventing those leave days being nominated as single days. Here, Sumsion was being released on alternate Saturdays from his obligation to be available for work. The appeal was therefore dismissed.
The EAT made it clear that there was no ‘magic’ about weekends, or a presumption that a leave day should not fall on a weekend if an employee is required to work on weekends.
Had Sumsion succeeded, it would have prevented the practice of closing businesses for a period to give all staff leave at the same time, such as the Christmas shutdown.
The position would have been different if the tribunal had found the arrangement to be a sham – for example, if an employer added an obligation to work an extra day a week for no additional pay – and then designated it a leave day, but that was not the situation here.
Provided employers’ arrangements are clear, operating a system whereby single days of leave are designated by the employer is permissible.
By Michael Powner, partner in the employment and pensions team, Charles Russell