Arriva London South Ltd v Nicolaou

Where an employer withholds voluntary overtime from a worker who declines to waive protection against working more than 48 hours, the tribunal must consider both the reason for the detriment and the employer’s statutory duties. The absolute protection in regulation 4(1) and the qualified duty in regulation 4(2) of the Working Time Regulations 1998 must be read together. A finding that the worker was excluded because he refused to waive his rights does not complete the analysis. The tribunal must decide whether the employer’s step was reasonable for the purposes of regulation 4(2), and how that duty relates to the protection against detriment under section 45A of the Employment Rights Act 1996.

The respondent bus operator introduced a policy under which drivers who had not signed an agreement waiving their 48-hour working-week protection would not be offered worked rest days or overtime. The claimant declined to sign and was removed from an additional rest-day shift. The Employment Tribunal found that he had suffered a detriment on the ground that he refused to forego his statutory rights, although it awarded no compensation.

The respondent appealed, arguing that the tribunal had failed to address the relationship between the absolute limit in regulation 4(1) and the qualified duty in regulation 4(2) of the Working Time Regulations 1998. The central issue was whether the finding of causation under section 45A of the Employment Rights Act 1996 was sufficient without determining the reasonableness of the employer’s policy.

1. Appeal allowed. The Employment Tribunal had correctly found that the claimant was excluded from additional overtime because he refused to sign an opting-out agreement. That finding established the relevant causal connection, but it did not resolve the statutory issue.
2. Regulations 4(1) and 4(2) of the Working Time Regulations 1998 must be read together. Regulation 4(1) imposes the 48-hour limit unless the worker agrees in writing to perform work beyond it. Regulation 4(2) imposes a qualified duty on the employer to take all reasonable steps, consistently with protecting workers’ health and safety, to ensure compliance with that limit.
3. The tribunal therefore had to determine whether excluding workers who had declined to opt out from the opportunity to work rest days was a reasonable step under regulation 4(2), and how that qualified duty interacted with the protection against detriment in section 45A of the Employment Rights Act 1996. The first-instance reasoning was insufficiently clear on that issue and was not Meek-compliant.
4. The assessment was for the Employment Tribunal, acting as an industrial jury, rather than the appellate tribunal, in accordance with Tilson v Alstom Transport [2010] EWCA Civ 1308. The matter was remitted to the same Employment Judge under the principles in Sinclair Roche & Temperley v Heard [2004] IRLR 763, because most of the reasoning remained intact and the omission was limited.

• Employment Tribunal: Employment Judge J Nash found that the claimant had suffered a detriment contrary to section 45A of the Employment Rights Act 1996. The decision was registered with Reasons on 12 April 2010.
• Employment Appeal Tribunal: The appeal was allowed. The matter was remitted to the same Employment Judge to determine the relationship between regulations 4(1) and 4(2) of the Working Time Regulations 1998 and section 45A.