![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201409.jpg)
European-level negotiations on the 48-hour week
[ch 9: pages 154-155]The European Trade Union Confederation (ETUC) continues to campaign to end the opt-out from the 48-hour limit on weekly working time, and to keep the current reference periods for calculating average working time in place. However, in practice, the individual opt-out is spreading across other EU states. Well over half the member states have made provision in their national legislation for some form of opt-out, although there are wide variations in the conditions attached to its use. Negotiations between the ETUC and the employers’ organisation Business Europe on changes to the Working Time Directive failed to reach agreement by the end of 2012.
An individual who refuses to opt out of the 48-hour week 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. What amounts to a “detriment” for this purpose was examined in the following case:
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 to do voluntary overtime. The EAT concluded that the new policy was not a breach of the WTR. The policy was not a “detriment” suffered by Mr Nicolaou as a result of opting out of the 48-hour week. Instead, the policy was reasonable because its purpose was 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”.
In drawing up the policy, the employer did not intend to force Mr Nicolaou to sign an opt-out agreement, or to punish him for not opting out. Instead, the refusal of overtime was a consequence of the employer implementing a reasonable policy.
Arriva London South Limited v Nicolaou UKEAT/0293/11