Workers must not be subjected to a detriment as a result of refusing to opt out of the 48 hour limit on working hours set by the Working Time Regulations. In Arriva London South Ltd v Nicolaou, the EAT has considered whether it was detrimental treatment to withhold overtime working from an employee who would not sign an opt-out agreement. In 2009 Arriva's employees were told that there would be no rest day working or overtime unless they signed an opt-out agreement.
Mr Nicolaou refused, and alleged that withdrawing his overtime amounted to a detriment. The Tribunal agreed that 'as a matter of straightforward causation...the detriment was caused by the Claimant's failure to sign the opt- out.' However, this decision was overturned by the EAT, which held that Arriva's implementation of the policy of having to sign an opt-out agreement was reasonable. It was not designed to penalise the employee, nor to force him to opt out, but simply to ensure that Arriva complied with its statutory duty under the Working Time Regulations. The employee was disadvantaged, but the cause of that disadvantage was not his refusal to sign the opt-out. This will be a welcome decision for employers dealing with employees who regularly work overtime.
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