Overtime or opting out?

As you are probably aware, the Working Time Regulations 1998 (WTR) implemented the European Working Time Directive. The Directive set a limit of an average of 48 hours worked for each seven days of work over a reference period. In the WTR the reference period is 17 weeks. The WTR allows employers to ask workers to opt out of the 48 hour working week and this is a familiar sight in many contracts of employment. A recent case examined how this works in a situation where an employee has opted out, and the employer then refuses to let that person work overtime.

There are various protections around the operation of an opt out. An employer cannot force a worker to sign an opt out, and should ensure it is clear that an employee can opt back in upon giving written notice (of up to a maximum period of 3 months). Section 45A of the Employment Rights Act 1996 also says that an employee cannot be subjected to any detriment if they refuse to opt out.

In the case, (Arriva London South Ltd v Nicolau) a bus driver claimed he had been subject to a detriment for refusing to sign an opt out. The detriment the bus driver alleged to have suffered was that his employer had refused to allow him to work overtime on rest days.  His employers (Arriva) had placed a blanket ban on drivers from working on rest days where they had not opted out of the 48 hour limit on the working week.

The Employment Tribunal initially agreed that the driver had been subjected to a detriment. However, Arriva appealed this decision to the Employment Appeal Tribunal (EAT), which upheld the appeal and reversed the decision of the Employment Tribunal.

The EAT found that the policy adopted by the employers was reasonable in order for them to comply with their statutory duty under the WTR. It was not a policy designed to penalise the driver for not opting-out, nor was its aim to force him to opt out. It was a reasonable policy and this defeated the claim by the driver. The EAT commented that there was possible tension between an employer’s duty under WTR and the protection against suffering a detriment. However,  “it would be a strange result if this employer were to be condemned for adopting a reasonable policy designed to ensure that its employees who exercised their right not to opt out of the 48 hour week maintained that right”.

This decision will give employers some comfort, but it will be important to show that policies are reasonable in any particular case, so we recommend you take advice if this is an issue in your business.

For advice on this or any other aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected])