Arriva London South Ltd v Nicolaou

A complaint under Employment Rights Act 1996, section 45A, requires the detriment to have been imposed because the worker exercised a protected working-time right. The protected act need not be the sole cause, but it must materially influence the employer’s decision. The tribunal must determine the employer’s actual reason, rather than apply a simple but-for test.

A reasonable policy adopted to comply with the employer’s qualified duty under Working Time Regulations 1998, regulation 4(2), may be separable from the worker’s refusal to opt out of the 48-hour limit. Where the policy, rather than the refusal, caused the treatment, the necessary causal link is absent.

The respondent employer operated bus services and had a policy under which drivers who had not opted out of the 48-hour average working week were not offered voluntary rest-day overtime. The claimant had not signed an opt-out agreement and was removed from a rest-day roster.

An Employment Tribunal upheld his complaint under section 45A of the Employment Rights Act 1996. The EAT allowed the respondent’s first appeal and remitted the case for consideration of whether the policy was reasonable for the purposes of regulation 4(2) of the Working Time Regulations 1998. The tribunal found the policy reasonable but upheld the complaint again. The issue on the second appeal was whether that finding was relevant to liability or only to remedy.

1. Appeal allowed. The complaint was dismissed under section 35(1) of the Employment Tribunals Act 1996.
2. Section 45A of the Employment Rights Act 1996 provides protection akin to victimisation protection. The relevant question is why the employer subjected the worker to the treatment. The protected act need not be the sole cause; it is sufficient that it materially influences the decision. Mixed motives are possible.
3. The reason-why inquiry must be distinguished from a but-for inquiry. The former applies where the employer’s conscious or subconscious mental processes are in issue.
4. Although reasonableness is not itself a defence to a section 45A complaint, the reasonableness of the employer’s conduct may bear directly on the reason for the treatment. The Employment Judge had found that the employer’s blanket policy was reasonable and necessary to secure compliance with its qualified duty under regulation 4(2) of the Working Time Regulations 1998.
5. On the facts, the rest-day work was withdrawn because the manager was enforcing that reasonable policy. That purpose was separable from the claimant’s refusal to sign the opt-out agreement. The necessary causal link between the protected act and the withdrawal was therefore absent, irrespective of whether the withdrawal amounted to a detriment from the claimant’s viewpoint.
6. The primary facts had been found, so the EAT could determine the matter rather than remit it.

1. Employment Appeal Tribunal: The first appeal was allowed and the matter remitted to the Employment Tribunal for reconsideration of the reasonableness of the employer’s policy.
2. Employment Tribunal: On remission, the tribunal found the policy reasonable but again upheld the complaint without awarding compensation.
3. Employment Appeal Tribunal: The second appeal was allowed and the complaint was dismissed.