In Arriva London South Ltd v Nicolaou the Employment Appeals Tribunal (EAT) has decided that a worker does not suffer a detriment if he refuses to sign a 48 hour week opt-out and is then refused an opportunity for overtime, if the employer’s motive is a desire to enforce a reasonable and necessary policy.
The Claimant, a bus driver, had declined to opt-out of the 48-hour week average limit, so the employer did not consider him for overtime, justifying its decision on the basis that it had a duty to ensure that it kept to its policy of preventing the Claimant exceeding a 48-hour average working week, in line with the Working Time Regulations 1998. The Claimant claimed a detriment under the Employment Rights Act for asserting his right to opt-out.
The EAT reviewed the authorities relating to causation in discrimination and whilstleblowing, and held that the necessary link between the Claimant’s protected act and the withdrawal of overtime for a detriment was not made out, the reason why the employee was refused overtime being to enforce a policy.
The EAT was fortified in its conclusion by the observation 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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