An employee can choose to opt out of the maximum 48 hour average working week stipulated by the Working Time Regulations. Each employee also has the right not to be subjected to any detriment for doing so. So, what happens when an employee refuses to sign the opt-out, but is refused overtime for this reason?
In a recent decision this had happened to the Claimant, a bus driver with Arriva. He argued that a blanket ban on staff who hadn’t signed the opt-out put him at a detriment. Arriva argued that it needed to have the ban in place to be sure staff working overtime did not exceed the 48 hour limit. In other words, Arriva argued that its reason for the detriment was not the employee’s refusal, but was its effort to comply with the 48 hour limit.
Perhaps understandably, the Appeal Tribunal agreed that Arriva’s argument should have been given better consideration by the Employment Tribunal. The case points out a contradiction in the Regulations that we are sure to hear more about.