Working Time Regulations: Refusal to offer overtime to an employee was reasonable

02-02-2012 09:22

Employers who have employees that regularly work overtime can take comfort from the recent EAT decision in the case of Arriva London South Ltd v Nicolaou.

The Working Time Regulations 1998 (‘WTR’) provide that a worker shall not be required to work in excess of an average of 48 hours per week unless the worker has agreed to do so in writing, known as an ‘opt out’. The WTR also provides protection to workers who are subjected to a detriment by an employer for refusing to forgo a right provided for by the WTR.

In the facts of this case Mr Nicolaou had been employed since 1998 and had regularly worked overtime for the company on his rest days. He was asked to sign a form of opt out by the company and refused. In 2008 the company introduced a policy that if a worker had not opted out they would not be offered overtime.

Mr Nicolaou brought a claim against the company arguing that by failing to offer him overtime he was being subjected to a detriment because he was only allowed to work overtime if he opted out of the protection of the WTR.

The EAT decided that the Company’s policy was reasonable and that the reason why his overtime was withdrawn was the implementation of that policy. They decided that action was not designed to penalise him for not opting-out, nor did the company have any interest in forcing him to opt-out. The withdrawal of the overtime was simply so that the Company could comply with its obligations under the WTR.

If you would like any further information on this topic, please contact Christina Merrington.

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