Julian Hoskins discusses the recent judgment by the EAT in the case of Arriva London South Ltd v Nicolaou UKEAT/0293/11 which held that a requirement by an employer for an employee to sign an opt-out agreement in order to work overtime was not a detriment and was necessary to ensure the employer complied with its duty under the Working Time Regulations 1998.


Mr Nicolaou had been employed by the bus company Arriva since 1998.  He regularly worked overtime.  He declined to sign an opt-out of the 48-hour average weekly limit on working time when asked to do so. 

Under regulation 4(1) of the Working Time Regulations 1998 (WTR) an employee's working time should not exceed an average of 48 hours a week, unless they agree in writing not to be bound by this limit (i.e. they "opt-out"). The WTR also states that an employer shall take all reasonable steps to ensure that the limits are complied with.

In 2009 Arriva enforced a policy whereby workers who had not signed the opt-out form would not be offered any overtime work.  Mr Nicolaou still refused to sign the opt-out and, as result, was unable to work any overtime hours. 

Mr Nicolaou brought a tribunal claim, alleging that he had been denied the opportunity to work overtime since the policy was enforced and that in refusing to forgo his rights under the WTR he had been subjected to a detriment.

This claim was brought under section 45A of the Employment Rights Act 1996 (ERA) which protects employees from being subjected to a detriment by their employer for refusing to forgo a right conferred by the WTR.

Employment Tribunal Judgment

The tribunal found that the Claimant had suffered a detriment as the requirement to agree to opt out had prevented him from being given overtime work.  They held that it was his refusal to opt out that caused the detriment.  Although the tribunal did indicate that they thought Arriva’s policy was reasonable in the circumstances, this finding was irrelevant to the question of Arriva’s liability.

Arriva appealed to the EAT. 

Employment Appeal Judgment

Arriva’s appeal was successful and the EAT dismissed Mr Nicolaou’s claim. 

In reaching their decision the EAT held that claims made under section 45A ERA should be approached in the same way as claims for victimisation under discrimination legislation. Consequently, the relevant question for the tribunal to ask should have been why Mr Nicolaou received the treatment he complained of.

It was held that the Claimant had been refused the opportunity to work overtime because Arriva needed to enforce its reasonable policy designed to ensure compliance with its statutory duty under the WTR. That action was not designed to penalise him for not opting-out or to force him to opt and was simply the implementation of that reasonable policy. 

The EAT also held that the finding relating to the reasonableness of Arriva's policy was relevant to liability, and not just to remedy.

What does this mean for me?

On this basis this decision can be welcomed by employers who have employees working overtime. The EAT recognised that there is a tension between the protection given to employees under section 45A of the ERA and the obligations on employers under regulation 4(2) WTR and this is yet to be conclusively resolved. 

However the EAT confirmed that the purposes of the WTR is to ensure the health and safety of employees and stated 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.”

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