In the recent case of Arriva London South Ltd v Nicolaou, the Employment Appeal Tribunal considered the issue of whether it is a detriment in terms of s.45A of the Employment Rights Act (ERA) 1996 for an employee who chooses not to opt out of the 48 hour working week average limit provided for in terms of the Working Time Regulations (WTR) to be refused the opportunity to work voluntary overtime on a rest day.

The Claimant in this case, Mr Nicolaou, was employed as a bus driver by the Respondent who had a policy of not offering working rest days to drivers who had not signed an opt-out from the 48 hour working week. Mr Nicolaou, who was among the group of employees who had not signed the opt-out, claimed that the Respondent’s refusal to offer him overtime amounted to a detriment in terms of s.45A ERA 1996 which provides that a worker has the right not to be subjected to any detriment on the ground that the worker has failed to enter into a Working Time Opt Out Agreement.

The Employment Appeal Tribunal (EAT), after considering the various authorities in this area, found that the Claimant had not suffered a detriment. This was because, in the view of the EAT, the Respondent’s policy of not allowing those who had not signed an opt out to take on overtime was “reasonable and necessary” to ensure compliance with its statutory duty under the WTR, regulation 4(2) – that is, to take all reasonable steps to ensure that the 48 hour limit is complied with. Accordingly, the Claimant was unable to establish the necessary link between his refusal to sign the opt-out agreement and the withdrawal of overtime by the Respondent.

By way of a reminder, we have provided a summary of the key aspects of the Working Time Regulations below:

Working Time Regulations Summary

The Working Time Regulations 1998 implemented the EU Working Time Directive and are the primary piece of legislation regulating hours of work in the UK.  The Regulations make a number of provisions relating to hours of work and can be quite complex given that there are a number of exclusions and ”special cases” of workers to whom some of the regulations do not apply. The key aspects of the Regulations include:

  • Regulation 4 – limits workers’ average weekly working time to 48 hours, although note that workers may ”opt-out” of this weekly limit and certain categories of workers are also excluded from this limit by the Regulations due to the nature of their work.
  • Regulations 6 & 7 – limit night work and the number of hours which night workers can undertake. There is an eight hour average limit on a night worker’s normal hours of work per day and an eight hour actual limit per day for those workers whose work involves special hazards or physical or mental strain. Employers also have a duty to offer free health assessments to workers who are, or who intend to become, night workers.
  • Regulations 10, 11 & 12 – provide for a daily rest period of 11 hours’ uninterrupted rest per day; a weekly rest period of 24 hours’ uninterrupted rest per week (alternatively 48 hours per fortnight); and a rest break of 20 minutes when a day’s working time exceeds six hours. Note however that there are a number of exceptions to the rules on rest periods and rest breaks.
  • Regulations 13 & 13A – provide that employers must also allow workers 5.6 weeks’ paid holiday per year.
  • Regulation 21 – relates to “special cases” of workers to whom the limits on night work and the entitlements to rest breaks and daily and weekly rest periods do not apply.
  • Regulation 9 – provides that employers must keep and maintain records showing whether the limits on average working time, night work and (where applicable) health & safety assessments are being complied with in relation to each worker.  

This is simply a brief overview of the main rights which workers have under the Regulations and it is important that employers are fully aware of their responsibilities in terms of the Regulations as penalties may be imposed for non-compliance.