Tell me on a Sunday – new obligations for retail employers

Provisions that will strengthen the rights of shop workers in relation to Sunday working are set out in the Enterprise Act 2016. This will mean extra protection for shop workers who either wish not to work longer hours on Sundays or do not want to work on Sundays at all.

One of the matters the draft Enterprise Bill had originally proposed was to devolve to local councils the power to set and extend their own Sunday trading hours. This had been awaited with interest by retailers, but ultimately the change was rejected by the House of Commons and the proposals have been abandoned for the time being. Nonetheless, the Act appears to anticipate that Sunday working hours may be extended in future, as shown by the introduction of new rules about objection notices (see below), so this issue may rear its head in future.

The new statutory provisions are not yet in force and we do not currently know when they will start to apply. Once they are implemented, retail employers will have a two-month period in which to act.

Current position

Shop workers have the right to opt out of working on Sundays by giving three months’ notice. Retail employers already have to tell shop workers about this right by giving them an explanatory statement (for which there is statutory text). Many businesses achieve this by using an addendum to the employment contract. If employers fail to give this information, the notice period is reduced from three months to one month.

For these purposes, a shop means any retail trade or business, including barbers, hairdressers, auction houses and hire companies. It does not include catering businesses or programme sales at theatres.

An employer cannot refuse an opt out, so theoretically, if all shop workers opt out of Sunday working, it may not be able to open on Sundays. Employers can, however, employ shop workers to work on Sundays only, in which case they are not permitted to opt out. Alternatively, employers can choose to pay higher rates on Sundays to incentivise employees to work.

What is changing?

The new legislation replaces and extends the existing requirements. Opting out of working on Sundays is still permitted, but now shop workers will also be able to object to working additional Sunday hours.

As is the case at the moment, the employer will have to notify a shop worker about the right to opt out of working on Sundays if:

• the shop worker may be required to work on a Sunday; and
• he or she is not employed to work only on Sunday.

The form and content of the explanatory statement will be specified in regulations (which have not yet been released). Shop workers can opt out by giving their employer an opting-out notice.

The new legislation reduces the notice period that shop workers must give if they work at a large shop, defined as one in which the customer area exceeds 280 square metres. Workers in large shops will need to give only one month’s notice before the opt-out becomes effective. Shop workers at smaller shops will still need to give three months’ notice (as is currently the case).

In addition, the Act introduces a new right for shop workers to object to working additional hours on Sundays, as opposed to opting out of Sunday working altogether. Employers will be required to notify shop workers who currently work on Sundays about the right to object to working additional hours on Sundays. “Additional” means in excess of their normal Sunday working hours. Again, the form and content of the explanatory statement will be specified in forthcoming regulations. If shop workers give their employer an objection notice, then after three months (for most employees) or one month (for employees working in a large shop) their objection will take effect.

Effect on employment contracts

A signed and dated opting-out notice or objection notice constitutes a change to the shop worker’s employment contract. After the notice period has run, any contractual requirement to do shop work on a Sunday or additional hours on a Sunday is unenforceable. Equally, any contractual obligation on the employer to offer shop work or additional hours on a Sunday is unenforceable.  If a shop worker reverses an opt-out or objection notice, the effect will be to vary their employment contract once again.

It seems obvious, but the legislation also specifies that if a shop worker opts out or objects under these provisions, the employer is not required to pay them for the Sunday hours that they do not work. In addition, a shop worker who has opted out or objected is not entitled to be offered additional hours on Sundays, even if they were offered to someone else.

Failure to give explanatory statement

If an employer fails to give a shop worker the explanatory statement about Sunday-working opt-out and objection rights, the notice periods that the shop worker must give are automatically reduced as follows:

• for large shops, from one month to seven days;
• for smaller shops, from three months to one month.

If an Employment Tribunal finds that the employer failed to issue the explanatory statement about opt-out rights to a shop worker, it can order a minimum award of two weeks’ pay in respect of that failure. This can be increased to four weeks’ pay if the Tribunal considers it just and equitable. There is, however, no right to bring this as a self-standing claim- it must piggy-back on another existing claim being brought by the worker.

Remedies for breach

If shop workers are subjected to detriment for exercising (or proposing to exercise) their right to opt out of Sunday working, or for objecting to working additional Sunday hours, they can bring a claim for detriment. The remedy will be an award of compensation at a level the Tribunal considers just and equitable.

If a shop worker is dismissed for exercising (or proposing to exercise) their right to opt out of Sunday working, or for objecting to working additional Sunday hours, this will be an automatically unfair dismissal. The two-year qualifying period will not apply in these circumstances, so employees can bring a claim as soon as they have started employment. The remedy will be the usual basic and compensatory awards for unfair dismissal.

Practical next steps

Retail employers do not need to do anything right now (unless they are in breach of the existing provisions!) For the time being, just keep an eye on when the new Sunday-working provisions come into force. We will be providing an update as soon as we know more.

Once the provisions are in force, retail employers must:

• Send a written statement in the specified form informing existing shop workers of their right to: (a) object to working on Sundays; and (b) object to doing shop work for additional hours on Sundays. This must be given within two months of the provisions coming into force.
• Give a written statement in the specified form to any new shop workers informing them of their right to: (a) object to working on Sundays; and (b) object to doing shop work for additional hours on Sundays. This must be given within two months of their start date.

In the meantime, don’t let it spoil your weekend…