Labour & European Law Review Weekly Issue 258 01 March 2012
The Employment Rights Act states that a worker must not be subjected to a detriment for refusing to sign a workforce agreement under the Working Time Regulations. In Arriva London South Ltd v Nicolaou, the Employment Appeal Tribunal (EAT) said that a worker was not subject to a detriment after overtime was withdrawn as the reason for the withdrawal was the implementation of an opt out policy, not the refusal to sign the opt out..
Following the introduction of the WTR in October 1998, the company adopted a policy whereby drivers, like Mr Nicolaou, who had not agreed to opt out from the 48 hour working week were not allowed to do overtime on their rest days.
However, the policy fell into disuse and he regularly worked on average four to five rest days a year, until it was flagged up in an audit in June 2009 that the policy was not being enforced.
After the company announced it was being reintroduced, Mr Nicolaou said that as he had no intention of signing the opt out agreement, management could not penalise him by refusing or not permitting him to work one rest day a week.
He was then mistakenly rostered to work on his rest day on 21 September 2009. When the company realised its mistake and changed the roster, Mr Nicolaou claimed he had been subjected to a detriment on the basis that he had been refused overtime because he had not signed the opt out.
Section 4(2) WTR states that employers must take all reasonable steps in keeping with the need to protect the health and safety of workers, to ensure that their working time does not exceed, on average, 48 hours per week.
Section 45 of the ERA states that workers have the right not to be subjected to a detriment short of dismissal because of anything that the employer has done (or failed to do), on the ground that the worker refused to sign an opt out agreement.
The Tribunal held that Mr Nicolaou was subjected to a detriment, but declined to award compensation, as it said that the blanket ban on working rest days by non-opted out drivers was reasonable in the circumstances.
However, the EAT disagreed and upheld the company’s appeal.
It said that the reason the company withdrew rest day working in September 2009 was simply because it had decided to enforce a policy - which was reasonable and necessary to ensure compliance with Regulation 4(2).
That aim could be separated from the underlying refusal by Mr Nicolaou to sign the opt-out agreement. “The necessary link between the Claimant’s protected act and the withdrawal complained of is not made out in these circumstances, regardless of whether that withdrawal amounted to a detriment from the employee’s viewpoint.”
It added that “it would be a strange result if this 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”.