Requiring Opt-Out as Condition for Working Overtime Not a Detriment

An employer did not subject an employee to a detriment when it required him to opt-out of the Working Time Regulations (“WTR”) as a condition for working overtime.  

In Arriva London South Ltd v Nicolaou, the employee claimed that the employer had subjected him to a detriment when he was only allowed to work overtime if he signed an opt-out agreeing that the 48 hour maximum working week did not apply to him.   The company had introduced a policy to that effect in 2008.   The employment tribunal held that the employee had been subjected to a detriment caused by his failure to sign an opt-out and it upheld the claim but awarded no compensation. 

The EAT allowed the employer’s appeal.   The employer had withdrawn overtime because it needed to enforce its policy which the employment tribunal had found was a reasonable method of ensuring that the 48 hour week was complied with in its organisation.  That aim could properly be separated from the underlying refusal to sign the opt-out.  The necessary link between the employee's refusal to sign the opt-out and the withdrawal of overtime had not been established, regardless of whether that withdrawal amounted to a detriment from the employee’s viewpoint. 

This is a sensible outcome for employers.  They are required by the WTR to take all reasonable steps to ensure that the working time limits are complied with.  To penalise them for a complying with that duty by introducing a policy such as this seems unfair.  Nevertheless, the employee in this case worked a standard 38 hour week and the evidence showed that even if he worked overtime he would not exceed the average limit.  The tribunal’s finding that the policy was a reasonable one is therefore open to question.