In Arriva London South Limited v Mr Nicolaou UKEAT/0293/11, the EAT held that the employee was not treated to his detriment by being required to sign an opt-out agreement in order to work overtime on his rest days.
Background
Under the Working Time Regulations the average working time for each seven-day period, including overtime, must not exceed 48 hours unless the employer has obtained the worker's agreement in writing (known as an "opt-out agreement"). An employer who does not take reasonable steps to ensure that the limit is complied with is liable on conviction to a fine (regulation 4(2)).
Section 45A of the Employment Rights Act 1996 protects a worker from victimisation by his employer in relation to his rights under the Working Time Regulations.
Facts
Mr Nicolaou worked for Arriva, which operates bus services, as a bus driver and he used to work overtime on rest days. He refused to sign an opt-out agreement.
Arriva introduced a policy that no work on rest days would be offered to a driver who had not signed an opt-out from the 48-hour week. Mr Nicolaou claimed that denying him the opportunity to work overtime subjected him to a detriment contrary to section 45A.
The Employment Tribunal
The Employment Judge (sitting alone) found that Mr Nicolaou had been subjected to a detriment and that "as a straightforward matter of causation" the detriment had been caused by his refusal to sign the opt-out agreement. The claim succeeded and the Judge found that the complaint was well-founded. Arriva appealed.
The Employment Appeal Tribunal
Before the EAT reached its decision, it considered the employer's duty to take reasonable steps under regulation 4(2). The EAT asked the Employment Judge for her view on the reasonableness of the step taken by Arriva. The Employment Judge responded by saying that the blanket ban on working rest days by non-opted out drivers was reasonable in the circumstances (Mr Nicolaou later appealed this point but was out of time).
The Employment Judge also considered whether her response to the EAT's question affected her decision regarding Arriva's liability. She concluded that, whatever the reasonableness of Arriva's policy, it was clear from the evidence that the sole reason for the withdrawal of work on rest days was the claimant's refusal to opt out and that the detriment had been applied on the ground of his refusal to forgo his rights contrary to section 45A. The Employment Judge did not consider any discrimination cases to be of relevance.
The EAT found that the Employment Judge should have referred to the principles established by discrimination case law in determining this claim, on the basis that protection under section 45A is "akin to protection from victimisation". The relevant question is - as it would be in a victimisation case - why did the claimant receive the treatment he complained of?
The EAT, in allowing Arriva's appeal, held that Arriva withdrew rest day working because it was enforcing its policy, which was reasonable and necessary to ensure compliance with the duty to take reasonable steps to ensure that the limit was complied with.
Comment
His Honour Judge Peter Clark, who allowed Arriva's appeal, made an interesting point in the postscript to his judgment. He stated that, given that the Working Time Directive was a health and safety measure (implemented by the Working Time Regulations), it would be a strange result if the 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 should be welcome amongst employers, as there had been concern that employers could face criminal sanctions where their employees wanted to work overtime but refused to opt out of the 48 hour working week. This decision shows that it is reasonable and necessary for employers to require that the opt-out agreement is signed in order to work overtime and it allows employers to comply with their duty under the Working Time Regulations.