Requirement to sign an opt-out agreement in order to work overtime not a detriment to an employee.
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24.1.2012
In Arriva London South Ltd v Nicolaou UKEAT/0293/11 the EAT considered whether an employee suffered a detriment where their ability to work overtime was conditional upon them opting out of the 48 hour working week limit imposed by the Working Time Regulations 1998 (WTR). The WTR provide that an employee’s working week shall, on average, not exceed 48 hours unless they have confirmed that they do not wish to be bound by this limit by signing a written ‘opt out agreement’ (Reg 4(1)). The WTR also provide that, where an employee has not signed an opt out agreement, the employer must take ‘all reasonable steps’ to ensure that the employee does not exceed the weekly limit (Reg 4(2)). Section 45A of the Employment Rights Act 1996 (ERA) protects employees from being subjected to a detriment by their employer for refusing to forgo a right conferred by the WTR. The Claimant in the Arriva case had worked as a bus driver for the Respondent transport company since 1998 and often worked overtime on his ‘rest days’. In 2008 the Respondent implemented a policy whereby an employee could not work overtime unless they had opted out of the 48 hour limit imposed by the WTR. The Claimant refused to sign the agreement and subsequently brought a claim under the ERA that he had suffered a detriment (in that he was no longer eligible to work overtime) through his refusal to forgo his right under the WTR to have his working week limited to 48 hours. The original claim in the Employment Tribunal was successful, the Tribunal found that the Claimant had suffered a clear detriment through his refusal to opt out of the WTR, although it held that the Respondent’s policy was reasonable in the circumstances, this was deemed irrelevant to their liability. Arriva appealed to the EAT. The EAT allowed the appeal and dismissed the claim. The claimant had been refused overtime as Arriva’s reasonable policy was intended to ensure that their employees did not exceed the weekly working limit imposed by the WTR. Clark HHJ noted in relation to the potential conflict between an employer’s duty to take ‘reasonable steps’ to comply with the weekly limit imposed by the WTR and the rights of employees under Section 45A of the ERA that “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”. The WTR, in Clark HHJ’s view, are in essence a Health and Safety measure. Employers who regularly have employees work overtime may take some solace from this decision. It would appear that a policy whereby working overtime is conditional upon an employee signing an opt out agreement will be ‘reasonable’ in relation to the employers obligations under the WTR. The employer’s obligations to comply with the WTR may override the employee’s rights under Section 45A of the ERA. However a seemingly sensible argument that was not addressed by the EAT is that it may not be reasonable to impose an opt out agreement for overtime work on an employee who has standard hours that do not come close to exceeding the 48 hour limit. This bulletin is for general guidance purposes only and should not be used for any other purpose.
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