The UK’s 48-hour opt-out



In the UK, workers may agree to opt out of the 48-hour maximum working week and around 13% of UK employees continue to work more than 48 hours a week. In September 2015, the TUC reported that the number of people working excessive hours (more than 48 hours a week) had risen by 453,000 (15%) since 2010, to 3,417,000, following more than a decade of decline in long hours working.



Any agreement with the employer to opt out must be in writing. It must be voluntary and workers cannot be forced to opt out. If workers opt out, the employer must keep records of these workers.



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).



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.



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