Section 45A of the Employment Rights Act 1996 (ERA) protects an employee from being subjected to a detriment by their employer for refusing to forgo a right conferred by the Working Time Regulations 1998 (WTR). Regulation 4(1) of the WTR provides that an employee’s working time must not exceed an average of 48 hours a week, unless they have given their prior consent to this in writing. Regulation 4(2) then provides that an employer must take all reasonable steps to ensure that the limits are complied with.
Mr Nicolaou had been employed by Arriva London South Ltd (Arriva), the bus company, since 1998 and regularly used to work overtime on rest days. When asked to sign an opt-out of the 48-hour average weekly limit on working time, he declined to do so. In 2008 Arriva introduced a policy that any worker who had not opted out would not be offered overtime. When the policy was enforced in 2009, Mr Nicolaou claimed that denying him the opportunity to work overtime subjected him to a detriment contrary to section 45A of the ERA, for having exercised his rights under the WTR.
A tribunal found that there was clearly a detriment and that, but for the opt-out, the overtime would have been available to him. It approached the matter simply, on the basis that the cause of the detriment was Mr Nicolaou’s refusal to sign an opt-out.
Overturning the tribunal’s decision and remitting the case back, the EAT held that the tribunal had failed to consider the relevance of the employer’s obligation under regulation 4(2) to the question of whether there had been a breach of section 45A of the ERA. It was possible that the apparent detriment had come about as a result of the employer taking reasonable steps to ensure compliance with regulation 4(2) and this was clearly relevant to whether there had been a breach of that duty. When considering section 45(A), the tribunal had failed to recognise the tension between regulation 4(1), which it described as an “absolute duty” and regulation 4(2), which it described as a “qualified duty”. Judge McMullen commented that the outcome of the case was being “keenly observed” because of the impact on voluntary overtime working.
This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, we cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.
