Sunday Trading Hours: how to open up shop and avoid employment tribunal claims

Shop workers can object to being required to work on a Sunday (provided they are not employed or engaged to work only on a Sunday) by giving the employer written notice of their objection, which must be signed and dated.

Unless the worker was employed before 26 August 1994 (in which case they cannot be compelled to work on a Sunday), the notice will take effect three months after it is served.

All workers with the right to opt-out of Sunday working also have the right to be given a written statement within two months of commencing shop work, which explains the steps that they must follow to serve an opt out notice.

How will those rights change?
Once the new laws take effect workers in large shops (those with a floor area of over 280 square metres) will only be required to give one month’s notice to opt-out. Workers in small shops will still have to give three months’ notice.

All shop workers will also have the right to opt out of having their normal Sunday working hours extended.

Employers will be required to provide workers with an explanatory statement setting out their right to opt out and where they can find support and advice about their rights.  If this isn’t  provided to employees (including existing staff) within two months of commencement of the regulations, or two months of the individual starting shop work (whichever is later), the notice required to opt-out of Sunday working or extended Sunday working will be reduced to seven days for workers in large shops and one month for workers in small shops.  In certain circumstances, the Employment Tribunal will also be able to make an award to workers of up to four weeks’ pay.

What other protections do workers have?
It is currently automatically unfair to dismiss an employee for opting out of Sunday working (or for indicating that they may opt out). The normal requirement to have two years’ service to bring an unfair dismissal claim does not apply in these circumstances.

Workers are also protected from being subjected to any detriment for opting out of Sunday working. Accordingly, employers should take care not to allow the fact that an employee has opted-out of Sunday working to influence (directly or indirectly) any decisions they make about that employee, such as selection for promotion or redundancy.

These protections will not be changed when the new regulations come into force.

What do we do if everyone opts out?
Unfortunately, there is nothing that an employer can do to prevent their employees from opting out – the right is absolute.  If a lack of available staff is an issue, employers could try to ensure that they have an appropriate number of Sunday only workers on the books, as these individuals will not have the right to opt-out.

In addition, employers could consider amending shift patterns so that workers have to work fewer Sundays or could offer higher pay for Sunday working, as either of these approaches may encourage workers not to opt-out.

However, employers should consider if paying a premium for Sunday working could, of itself, lead to claims.  If they have a religiously diverse workforce, they may need to justify why it is proportionate to pay a premium for working on Sunday and not for days that are significant for other religions.

Additionally, employers should bear in mind it is likely any premium paid for working on a Sunday will need to be included when calculating holiday pay.

In the short term, it should be remembered that notice has to be given to opt-out. Strictly speaking, individuals can therefore be compelled to work on Sundays until their opt-out takes effect.   However, employers should again consider whether there is a risk of an indirect discrimination claim in these circumstances, for example if workers have childcare responsibilities or hold religious views that are incompatible with Sunday working.  Employers with larger workforces may find it harder to justify requiring workers in these groups to work on a Sunday assuming they have a larger pool of workers in place to cover the shifts.

First published in EmploymentSolicitor.com, September 2016

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