The UK’s 48-hour opt-out

The WTR allow workers to agree to opt out of the 48-hour maximum working week.

Any agreement with the employer to opt out must be in writing. It must be entirely voluntary, and workers cannot be forced to opt out. If they do opt out, the employer must keep records of these workers. Workers can opt back in at any time by giving notice of not less than seven days and not more than three months, depending on what their contract says.

Workers cannot agree to opt out of the 48-hour working week through terms incorporated in a collective agreement. Instead, each individual worker must freely agree to any opt-out, with full knowledge of the facts (Pfeiffer v Deutsches Rotes Kreuz [2005] IRLR 137).

A worker cannot be treated less favourably for refusing to opt out of the 48-hour week. A worker who suffers a detriment — for example, being turned down for a promotion or denied a pay rise — for refusing to opt out can bring a claim in an employment tribunal.

It is not a detriment for an employer to have a policy of refusing voluntary overtime to any worker who refuses to sign an opt-out agreement. The EAT has ruled that this is a reasonable policy because the employer also owes a statutory duty to take all reasonable steps to secure compliance with the 48-hour limit (regulation 4(2), WTR) (Arriva London South Limited v Nicolaou [2011] UKEAT/0293/11).