Facts
In Sumsion v BBC Scotland, Mr Sumsion worked for the BBC as a standby carpenter for the production of a TV drama. He had a fixed term contract that required him to work six days a week, including Saturdays, and was paid a weekly rate. The contract specified that this included working time leave. Mr Sumsion was required to take working time leave on those Saturdays when work was not scheduled. Instead he wanted to take his leave in one block at the end of his contract. He argued that the BBC was in breach of the Working Time Regulations by requiring him to take leave on a day which would otherwise not have been a working day. He also argued that an employer could not legitimately deem Saturday to have been a working day since in the UK it was not generally working day.
Decision
The case went to the EAT, which was not convinced by Mr Sumsion’s arguments.
It confirmed that there is nothing in the Working Time Regulations or the Working Time Directive that prevented an employer from designating that leave should be taken in single days.
Nor was there deemed to be any 'magic' about Saturdays. In many industries working on Saturdays is the norm and there could not be an assumption that requiring employees to take leave on a Saturday was a sham or meant that the leave was not ‘real’.
However, the EAT could envisage cases where leave did not count as ‘real’ leave. For example, it would be a sham if an employer altered an employee’s contract of employment to require the employee to be available for work for six days a week with no extra pay, when previously they had only been required to work five, simply in order to designate Saturdays as leave.
Comment
This case does not alter the status quo in relation to an employer’s ability to have shutdowns or otherwise designate certain days as working time holiday – provided that the employer had the right under the contract to ask the employee to work on a day designated as working time leave.
So, for example, if a part timer was never required to work on Mondays, you could not designate a bank holiday Monday as a day of their working time leave. Or if a shift worker’s contract made it clear that the worker would never be asked to work on a Sunday, Sunday could not count be designated as a day of working time holiday.
An employer can fix a day of working time leave on a day when a worker would otherwise been on call, whether or not the worker would actually have been called out to work on that day.