Detriments and Causation

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

Does a worker suffer a detriment if he refuses to sign a 48-hour week opt-out, and is then refused an opportunity for overtime by his employer?

Not if the employer's motive, in this case, a desire to enforce a reasonable and necessary policy, is properly separable from conduct that could be a detriment, holds the EAT in Arriva London South Ltd v Nicolaou.

The Claimant, a bus driver, had declined to opt-out of the 48-hour week average limit, so the employer did not consider him for overtime, justifying its decision on the basis that it had a duty to ensure that it kept to its policy of preventing the Claimant exceeding a 48-hour average working week, in line with Regulation 4 (2) WTR 1998. The Claimant claimed a detriment under S45A ERA for asserting his right to opt-out.

The EAT reviewed the authorities relating to causation in discrimination and whilstleblowing, and held that the necessary link between the Claimant's protected act and the withdrawal of overtime for a detriment was not made out, the reason why the employee was refused overtime being to enforce a policy.

The EAT was fortified in its conclusion by the observation that "...It would be a strange result if this employer were to be condemned for adopting a reasonable policy designed to ensure that its employees who exercised their right not to opt out of the 48 hour week maintained that right...".