ok to sign Working Time Directive form?

Sambucus_Nigra

bob_dob wrote: »

I think you misunderstood my question.

Let me clarify- some employees dont want to sign the opt out. They are willing to work up to 8 hours overtime per week. The rule (?) seems to be that the employer shouldn't punish the employees or ban them from working overtime but that is exactly what is happening.
My question is if the employer voilates/ignores this, is there no one to complain to? Is it just tough luck?

I didn't misunderstand it, I answered it.

If the employer has asked people to sign the opt out form, and some don't want to, then they are offering overtime to those that have signed it. If the people that want to do overtime sign it, then presumably they will be offered the overtime.

From an employer's view - the opt out form IS the piece of paper that verifies that people are happy to do overtime. Hence offering it - to those - that signed it.

chainsaw

Bob Dob....

I think you are where I was three years ago or more.

You found yourself in the dark about the WTD but you thought your employer might be breaking the law.

I found this so I brought it to their attention expecting the company to comply with the law but they didn't seem interested, in fact even the managers were in the dark on the subject. I went to my local rep and asked him. I work for a big company and our local reps get well looked after by the company. He was not interested so I went to the top of the union. A high level national offical told me sevveral times he did not understand my questions and referred me to the local rep!!!

I then downloaded the WTD and WTR and read them. Then I searched out all the legal cases concerning the WTD/WTR and read them so that I understood the case law.

Convinced I was right I approached the comapny and union again but was stonewalled again.

I then looked to outside agencys who are supposed to help people like us and found the frontline staff knew less than me and were not much help. When I pushed a little harder and higher up the ladder it was clear to me they were part of the conspiracy to just ignore the WTD along with the government and unions

I think you have asked a couple of times if there is anyone you can complain to if the WTD is broken. I have learned that there are lots of people you can complain to but nobody who will do anything for you.

You have to make the stand for yourself be that just standing your ground at work or taking out a PG or even going to an employment tribunal.

If you have a good case and study the regs and case law you may well win at an employment tribunal if thats the road you want to go down but don't do it lightly.

The fact that most people don't understand the WTR and won't want to go to an ET or even make a stand at work allows the law to be broken. Like the bible the WTD/WTR can be twisted to say what your employer wants if you are not well informed.

BTW your employer cannot give all the overtime to the people who opted out. It needs to be distributed roughly evenly up to the 48 hr week average. If it is not then the WTD is being broken but just the same as when you break the law parking on a yellow line unless someone enforces that law then there will be no punishment.

DVardysShadow

bob_dob wrote: »

Hmmm.....so unless it's 'on paper' then it is in fact tough luck?
Ps- As stated- the manager has actually announced that those who have not opted out will NOT get any overtime.

Makes sense to opt out but refuse overtime beyond 8 hours/week

hcb42

i was going to say exactly the same thing.

bob_dob

Chainsaw,
Thank you so much for your help with this. It opened my eyes and im very glad to hear you gave it a good go!
Thank you for your help!
By the way, i loved this-

The fact that most people don't understand the WTR and won't want to go to an ET or even make a stand at work allows the law to be broken. Like the bible the WTD/WTR can be twisted to say what your employer wants if you are not well informed.

All the best- B

zzzLazyDaisy

Apologies for resurrecting an old thread, but the EAT has recently ruled on an issue directly relating to the question raised by OP.

In Arriva London South Ltd v Nicolaou the EAT considered the issue of whether a worker suffers a detriment is he refuses to sign a 48hr opt-out, and is then refused the opportunity for over-time by the employer.

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 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 (ie to ensure that employees did not exceed the 48 hr working week).


Dx

Sambucus_Nigra

zzzLazyDaisy wrote: »

The EAT 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 (ie to ensure that employees did not exceed the 48 hr working week).

sorry - what does that actually mean - in real terms....?

zzzLazyDaisy

Sorry

Under the WTR it is unlawful for an employer to discriminate against an employee by subjecting them to a detriment because they have refused to sign an opt-out to the normal 48 hour maximum working week. One of the arguments put forward in this thread was that in refusing to give overtime to employees who had refused to sign the opt-out, the employer was acting unlawfully because the refusal to give over-time to those people amounted to a detriment (in other words, a 'punishment' or 'retaliation')

The EAT said that (in the case it considered) the employer's decision not to offer over-time to employees who refused to sign the opt-out was not unlawful, because it was not intended as a 'punishment' for refusing to sign the opt-out, but rather it was done in order to ensure that people who had not signed the opt out complied with the business policy that they should not work more than 48 hours a week.

It is a fine line, I agree. Nevertheless, any sensible, well advised employer, will now make sure that they can point to a good business reason for treating employees who refuse to sign an opt-out differently from those who agree to sign the opt-out.

Does that help, or is it still as clear as mud?

Dx

Sambucus_Nigra

Lovely. Makes perfect sense.

chainsaw

zzzLazyDaisy wrote: »

Does that help, or is it still as clear as mud?

Dx

This is interesting, I have not read Arriva London South Ltd v Nicolaou but will be doing as soon as I have finished this post.

Without having read the case I would guess it was a question percentage hours. I don't think a bus company could justify flogging a driver for 60 hrs a week every week driving a bus full of people whilst another driver worked only 40 hrs a week and was prepared to do another 8 hrs.

After all even someone who only works a 40 / 48 hr week could still work 60 hr weeks as long as their average over 17 weeks was still 48 hrs

Allowing one driver of a bus to work excessive hours and become tired whilst driving a bus load of kids when another fresher driver is available is downright dangerous. I can only assume the difference in hours worked was not sufficient to justify the claim of discrimination.

Just because someone says they have been discriminated against does not mean they have been and if they loose their case that does not open the door for all company's to discriminate against employees who opt to work a 48hr week.