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Opting out of the 48-hour week
[ch 4: page 113]The regulations allow individuals to opt out of the 48-hour limit. Any opt-out agreement must be entirely voluntary and must be in writing. The employer must keep records of any employees who opt out. An opt-out cannot be agreed through a collective agreement. Instead, each worker must freely agree to opt-out 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. As part of its, It’s about time campaign against long hours, the TUC has produced a model letter for workers to use to opt back in to the 48-hour week.
An individual who refuses to opt out cannot be treated less favourably as a result of that decision. A worker who suffers a detriment (for example, being refused a promotion or a pay rise) for refusing to opt out can bring a claim in an employment tribunal. However, 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:
Mr Nicolaou was a bus driver who refused to sign a 48-hour opt-out agreement. His employer, Arriva buses, introduced an “across-the-board” policy that no driver who refused to sign an opt-out agreement would be allowed any voluntary overtime.
The EAT said the new policy was not a breach of the Working Time Regulations (WTR). Not allowing Nicolaou overtime was not a detriment suffered as a result of opting out of the 48-hour week. Instead, the policy was a reasonable response to the need to avoid a breach of the WTR.
Regulation 4(2) of the WTR obliges employers to “take all reasonable steps, in keeping with the need to protect the health and safety of workers, to ensure that the [48 hour limit] is complied with”. Arriva did not intend to force Nicolaou to sign an opt-out agreement, or to punish him for not opting out. Instead, the refusal of overtime was a consequence of implementing a reasonable policy.
Arriva London South Limited v Nicolaou [2011] UKEAT/0293/11