48 hour week opt-out

Friday, 20 January 2012 00:00

Most employers know that they can ask an employee to opt-out of the 48 hour maximum working week provision in the Working Time Regulations. What happens if an employee refuses?

The case of Arriva -v- Nicolou in the Employment Appeal Tribunal have confirmed that an employer can refuse to allow the employee to work overtime, even if the employee has not exceeded the 48 hour week during their normal working week.

Arriva decided to implement a policy across the business that any employee who had not agreed to opt out of the 48 working week would not be put in the pool for lucrative overtime. The employee claimed that this was unlawful, as the Working Time Regulations prohibit employees from suffering a detriment because they have exercised their rights under the Regulations. Mr Nicolou claimed that his opt out was exercising his detriment and the failure to consider him for overtime was the detriment.

The EAT disagreed. Importantly, it was decided that the purpose of the policy was not to punish employees for refusing to opt-out, but was a reasonable way for Arriva to ensure that it did not breach its obligations under the Regulations to ensure that the 48 hour week was not exceeded. It was just bad luck for Mr Nicolou that it affected him in this way.

Employers should always ensure that they do not allow employees to exceed the 48 hour working week without agreeing with the employee to opt out under the Regulations. If an employee refuses to opt-out, employers must ensure that the 48 hour maximum was enforced very carefully. Equally, employees should not be subjected to a detriment for refusing to opt out.

For further advice and assistance, contact our specialist employment law team on 01392 207020 or email This e-mail address is being protected from spambots. You need JavaScript enabled to view it .