Arriva London South Ltd v Nicolaou concerned a bus driver who complained that his employers were imposing an unlawful detriment when they withdrew rest day overtime from him. The decision was made under a policy of only giving overtime to those workers who had agreed to opt out of the 48 hour maximum working week. The policy was designed to ensure compliance with the rule on maximum working hours under the Working Time regulations.
His Honour Judge Peter Clark, sitting alone in the Employment Appeal Tribunal applied the test that it was necessary to establish the “reason why” an employer had acted in the way it had.
It was submitted on behalf of Mr Nicolaou that he suffered a detriment, in that he was refused overtime on a rest day because he had not signed the opt-out agreement. That applied unreasonable pressure on him to sign the opt-out agreement if he wished to work the overtime. There was no dispute that the sole reason for the withdrawal of rest day working was the Claimant’s refusal to opt out.
The employer’s case was that the policy was justified on the basis its need to comply with Regulation 4(2) of the Working Time Regulations: “An employer shall take all reasonable steps, in keeping with the need to protect the health and safety of workers, to ensure that the [48 hour per week limit] is complied with in the case of each worker employed by him in relation to whom it applies…[the qualified duty]”.
In this case, the reason why the detriment was imposed was not the bus driver’s refusal to sign the opt out, but rather in order to comply with health and safety regulations, and it was therefore lawful.