Arriva London South Ltd v Nicolaou [2011]UKEAT/0280/10
Section 45A of the Employment Rights Act 1996 protects workers from victimisation relating to their exercise of rights under the Working Time Regulations 1998 ("WTR"). The claimant in this case argued that he was subjected to an unlawful detriment contrary to section 45A. The claimant's employer had denied him the opportunity to work overtime after he refused to sign an opt-out agreement relating to the 48 hour working week.
The EAT held that the employer had acted reasonably when refusing the employee overtime work on his rest days. It found that the employer did so to ensure compliance with their statutory duty under Regulation 4(2) of the WTR (which requires employers to take all reasonable steps to ensure that the 48 hour limit is complied with), and not to victimise the employee for refusing to sign the opt-out.
Implications
This a helpful case for employers, as it provides a clear example of the distinction between victimisation of an employee because of their assertion of particular rights, and taking steps for genuine and legitimate reasons which happen to have detrimental consequences for that employee.
It also provides reassurance to employers that they can safely rely on a policy of restricting the working hours of employees to 48 hours a week, if they have not signed an opt-out and where the aim in doing so is to ensure compliance with Regulation 4(2) of the WTR. As ever though, consistency of approach will be the key to avoiding allegations of victimisation or discrimination.
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