Opting out of the 48-hour week

The WTR allow adult workers to opt out of the 48-hour limit on the working week. Any opt-out agreement must be entirely voluntary and in writing. The employer must keep records of employees who opt out. An opt-out cannot be agreed collectively. Instead, each worker must freely consent with full knowledge of the facts. 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.

An individual cannot be treated less favourably for refusing to opt out. If they suffer a “detriment” for refusing to opt out, for example, being refused a promotion or being bullied, they can bring a tribunal claim.

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