16 July 2019
For the majority of workers in England and Wales, there are no statutory restrictions regulating days of the week they are required to work. However, since 1994 retail and betting shop workers cannot be compelled to work on a Sunday.
The law applies to any premises where retail trade or business is carried on, including barbers, hairdressers, auction houses and hire companies. Catering business and the sale of programmes or similar items at theatres are specifically excluded. A distinction is made between 'small' and 'large' shops. Large shops (those of 280 square metres or more) can only open for a maximum of six continuous hours on a Sunday. Smaller shops are not restricted.
A 'shop worker' is anyone who, under their contract of employment, may be required to work in or about a shop on a day on which the shop is open for the serving of customers ('shop work'). So the rights conferred on retail and betting shop workers apply only to employees – any workers or contractors are excluded.
Shop or betting workers who are or may be required to work on a Sunday, but are not employed to work only on Sunday, have the right to object to Sunday working by giving their employer an opt-out notice.
Affected employers must give their employees a statement of their rights, explaining the steps that they must take to opt out, within two months of such employees becoming entitled to opt out. For retail employers, this is likely to be within two months of having hired a new shop worker. The shop worker must then provide their employer with an opt-out notice. The notice must be in writing, be signed by the worker, and must state that they object to Sunday working. Such notice becomes effective after three months for workers in small shops; in larger shops, it's a month.
Employers cannot refuse a request to opt out of Sunday working and employees who have opted out have a statutory right not to suffer a detriment for having done so. Employers therefore cannot dismiss workers, select them for redundancy or otherwise treat them unfairly by virtue of their Sunday working opt out. No qualifying period of service is required for a worker to claim unfair dismissal.
This right poses a clear problem for employers: what if all employees opt out? There is, unfortunately, nothing an employer can lawfully do to prevent its employees from opting out. An employer therefore needs to rely on incentives if it is concerned: it is permissible to pay employees more for working on Sundays than on other days. An employer may also consider using agency workers or Sunday-only workers to ensure that it always has sufficient staff to continue operating on a Sunday.
Failure to provide relevant workers with the information required will shorten the notice period following an employee handing in an opt-out notice. The notice period reduces to one month for workers in small shops, and one week for those in larger shops. No other penalty can be imposed on the employer.
The statutory right not to be dismissed or treated unfairly on the basis of having opted out of Sunday work has two exceptions. A worker will not be subject to a detriment if the employer either pays other workers who do work Sundays a higher rate, or offers them other benefits; or does not pay the worker for the Sundays on which they do not work.
In essence, a worker's hours and pay may be lawfully reduced to reflect the fact that they are no longer working on the Sundays which they would have otherwise usually worked. Although this may present an administrative burden for employers with variable rotas, there is no requirement for the employer to 'make up' workers' hours on other days of the week, unless the contract provides otherwise.
The regulation of Sunday working came about as a result of the government's wish to respect religious objections to working on a Sunday. Despite that, the protection conferred is not limited to workers not wanting to work due to religious beliefs, nor are those with religious beliefs offered any special protection by virtue of the opt out provisions.
Requiring employees to work on Sundays risks triggering a claim for indirect discrimination on the grounds of religion or belief. The provision that employees work on Sundays may disadvantage those for whom Sunday is a religious day of rest: an employer must therefore be able to objectively justify why they are needed to do so.
Previous cases looking at whether such provisions, criteria or practices can be justified have shown that whether a tribunal makes a finding of indirect discrimination is highly fact-specific. A tribunal will have regard to, for example, the requirement of a consistent service over the weekend, the interests of other staff in not having to work excessive Sundays, the increased cost of having to use agency staff as substitutes, if relevant, and the reduced continuity and quality of service that doing so would give rise to.
Through the use of incentives and fair rostering, employers can manage what may seem like a potentially onerous employee right. If opt-out notices are received, it is worth remembering that the hours do not have to be made up on other days, unless the employees' contracts say otherwise.
by Colin Godfrey and Katie Davenport