Arriva London South Ltd v Nicolaou

A complaint under Employment Rights Act 1996, section 45A, requires the tribunal to determine the reason why the employer acted. The protected act need not be the sole cause; it is sufficient that it was a significant influence or material factor. However, an employer’s legitimate and reasonable implementation of a policy designed to comply with its qualified duty under regulation 4(2) of the Working Time Regulations 1998 may be separable from the worker’s refusal to opt out of the 48-hour limit. In that event, the necessary causal link to victimisation is absent, even if the worker experienced a detriment.

The employee claimed that his employer subjected him to a detriment by withdrawing voluntary rest-day overtime because he had not signed an agreement opting out of the 48-hour working week. The Employment Tribunal initially upheld the complaint. On the employer’s first appeal, the EAT remitted the matter for consideration of whether the policy excluding non-opted-out drivers was reasonable for the purposes of regulation 4(2) of the Working Time Regulations 1998.

On remission, the Employment Tribunal found the policy reasonable but again upheld the complaint, treating reasonableness as relevant only to remedy. The employer appealed again. The central issue was whether implementation of that reasonable policy was action taken on the ground that the employee had exercised his statutory right not to opt out.

1. The appeal was allowed and the complaint was dismissed.
2. Section 45A of the Employment Rights Act 1996 provides protection akin to victimisation protection. The tribunal must ask why the employer subjected the worker to the treatment. The protected act need not be the sole cause; it is enough that it had a significant influence or was a material factor.
3. The reason-why inquiry differs from a simple but-for test where the employer’s mental processes are in issue. A feature of the protected act may be treated as separable from the protected act itself.
4. The Employment Tribunal erred by failing to apply the discrimination authorities and by treating the reasonableness of the employer’s policy as relevant only to remedy. The policy was found to be reasonable and necessary to ensure compliance with the employer’s qualified duty under regulation 4(2) of the Working Time Regulations 1998.
5. On the facts, the rest-day work was withdrawn because the employer was enforcing that reasonable policy, rather than to penalise the employee or compel him to opt out. The necessary causal link between the protected act and the detriment was therefore absent, regardless of whether the withdrawal amounted to a detriment from the employee’s perspective.
6. The EAT exercised its power under section 35(1) of the Employment Tribunals Act 1996 to determine the case because the primary facts had already been found.

1. Employment Tribunal: upheld the complaint but made no compensation award.
2. Employment Appeal Tribunal: on the first appeal, identified inadequate reasoning and remitted the matter to the same Employment Judge for reconsideration, in appeal reference EAT/0280/10/DA.
3. Employment Tribunal on remission: found the employer’s policy reasonable but again upheld the complaint.
4. Employment Appeal Tribunal: allowed the second appeal and dismissed the complaint.