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The EAT has held in the case of Arriva London South Ltd v Nicolaou that a bus driver who had refused to sign a 48-hour week opt-out did not suffer a detriment on being refused an opportunity to work overtime by his employer.
The employer did not consider the claimant 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 reg 4(2) of the Working Time Regulations 1998. The claimant claimed a detriment connected with his assertion of his right to opt out. The EAT held that the reason why the employee was refused overtime was to enforce a policy and observed that the policy was designed to ensure that employees who exercised their right not to opt out of the 48-hour week maintained that right.
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