Breath of relief for employers under Working Time Regulations

27th January 2012

The Employment Appeal Tribunal ("EAT") has concluded that an employee who has not signed a working time opt-out will not be deemed to have been treated detrimentally where they are denied overtime.

The European Working Time Directive was implemented in the UK by the Working Time Regulations 1998 (“WTR”). In order to protect employees, the WTR states that the average working week must not exceed 48 hours.  Any employer in breach of this regulation could face criminal liability and a fine. This 48-hour limit does not apply where the employer has obtained the worker’s agreement in writing (an “opt-out agreement”). Additionally, section 45A of the Employment Rights Act 1996 (“ERA”) protects workers from being subjected to any detriment as a result of a refusal to give up a right conferred by the WTR.

In Arriva London South Limited v Mr Nicolaou, Arriva (the employer company) implemented a policy that no overtime would be offered to a driver who had not signed an opt-out from the 48-hour week regulation contained in the WTR. Mr Nicolaou, who worked for Arriva, claimed that denying him the opportunity to work overtime on this basis subjected him to detriment contrary to section 45A of the ERA.

The EAT found that the original Employment Judge should have referred to the principles established in discrimination case law, as the protection afforded under section 45A was “akin to protection from victimisation”. The EAT therefore considered that the correct question in this case was not “but for” Mr Nicolaou’s refusal to sign an opt-out would he have been refused overtime but rather, why did he receive the treatment complained of? They then progressed to consider the employer’s duty to take reasonable steps under the regulation 4(2), and whether the company’s policy was reasonable in the circumstances. The EAT concluded that in the circumstances the policy Arriva had implemented was reasonable and necessary as it was no more than what was required in order to ensure that they complied with their duties.

This decision demonstrates that where an employer has such a policy, they will not be running the risk of criminal liability. This sensible decision of the EAT will therefore come as a relief to numerous employers who have implemented similar policies. It would certainly have come as a surprise if the EAT had decided to punish employers for having reasonable policies in order to ensure that they were in line with their statutory duties under the WTR.

For further information please contact Alexandra Dean of Gepp & Sons on 01245 228141 or deana@gepp.co.uk