77 High Street
Tel: 020 8658 3922
Fax: 020 8658 8694
Working Time Regulations 1998
Can an employer withhold overtime?
In the current economic climate, employers may prefer to have a reduced workforce, but to pay that workforce to work overtime as and when it is needed.
What if the workforce refuse to work overtime?
Under The Working Time Regulations 1998 (as amended) (“WTR”) adult workers cannot usually be forced to work more than 48 hours a week on average (calculated over 17 weeks). “Worker” is a widely defined term, and may include e.g. casual, freelance and even self employed workers.
An Employer cannot force an Employee to sign an opt-out clause. The WTR contain provisions to protect workers who suffer any detriment for insisting on hisher rights under the WTR – this would include a detriment or loss suffered because they refuse to sign an opt-out clause. It is automatically unfair to dismiss an employee who refuses to opt out of hisher rights under the WTR. Breaching an Employee’s rights under the WTR could therefore lead to expensive claims in the Employment Tribunal.
It is also a criminal offence for an Employer not to comply with the WTR, and failure to take all reasonable steps to ensure that the limits are not exceeded could result in a substantial fine.
What can be done to protect the Employer?
Where an Employee voluntarily signs an opt-out agreement this rule can effectively be ignored. Employers should therefore ensure that their contracts of employment are drafted to include an opt-out clause. However, even then, the Employee has the right to give notice to opt back into the Regulations.
Can an Employee refuse to allow an Employee to work overtime?
Whilst many businesses could not survive without their workers working overtime, it is also the case that many workers rely on regular overtime to boost their wages.
What is the position if a worker wants to work overtime, but will not sign an opt-out agreement? Would refusal to let himher work overtime without opting out of the WTR be a detriment in itself? The Employment Appeal Tribunal considered this in the case of Arriva London South Limited v Nicolaou 2011
In that case a bus driver regularly worked overtime on his rest days, but would not sign an opt-out agreement. In 2008 Arriva introduced a new policy whereby overtime would no longer be offered to any worker who had not signed an opt-out clause. Mr Nicolaou claimed that this rule was unfair and amounted to an unlawful detriment. His employer claimed that, on the contrary, it was necessary to ensure that they complied with the WTR.
The ETA sided with the Employer. Because the rule was designed to ensure the health, safety and welfare of the workforce (rather than penalise workers who would not sign an opt-out agreement) it was fair of the Employer to restrict the hours of workers who would not sign an opt-out to 48 hours or less a week. However, to avoid claims of discrimination or unfairness, this should be treated as a general policy which is applied to all workers.
Advice for Employers
Make sure that your contracts of employment are drafted to include an opt-out clause and to ensure that that available overtime is offered on a discretionary basis, but applied fairly across the workforce.
If you want to discuss any employment issues please contact Janet Long by email at firstname.lastname@example.org
The contents of this article are intended for general information only. It is not a substitute for legal advice, and shall not be deemed to be or constitute legal advice. We therefore cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. We will, however, be pleased to advise you on the specific facts of your case.