Employers should be wary of rule changes for Sunday shop workers

Devolution plans dropped but increased opt out protections remain in new legislation

Government plans to give local authorities the power to alter Sunday trading rules were dropped some weeks ago when the provisions in the Enterprise Bill 2015/16 were defeated in Parliament. But it may have gone under retail employers’ radar that the increased employment protections for Sunday shop workers that accompanied those provisions remain in the bill, were recently approved by House of Lords, and should become law in due course.

Shop workers (with some exceptions, for example, those working in catering businesses) employed prior to 26 August 1994 have the right not to work on Sundays unless they are employed specifically to work only on that day, or have opted in to Sunday working (Employment Rights Act 1996). Most other shop workers may give three months’ notice to their employer of their opting out from Sunday working. This notice period is reduced to one month where the employer has not provided a statement, within two months of the employee starting work, explaining the right to opt out and the process for doing so. Shop workers dismissed as a result of opting out can claim automatic unfair dismissal. Those that opt out are also protected against other forms detrimental treatment.

The latest amendments to the Enterprise Bill include a new schedule of protections for Sunday shop workers. Workers in larger shops, where the internal floor space used for serving customers or displaying goods occupies more than 280 square metres, may opt out of Sunday working by giving their employer one month’s notice. Those working in smaller shops must still three months’ notice of opting out.

Shop workers have a new right to object to working additional hours beyond their “normal Sunday working hours” – they can do this by notifying their employer. It is unclear whether this right will apply to all Sunday shop workers or just those with more than one year’s continuous service, although regulations are expected on this and other details, such as how ‘normal hours’ will be calculated. Employers will not be able to reject an objection notice. Once the relevant notice period has expired, any requirement for the employee to do additional hours on a Sunday will become unenforceable.

Employers will have to provide a statement explaining both rights in relation to opting out and objection notices within two months, running either from the start of employment or from the date these new provisions come into force. If employers fail to do this, the requirement for the worker’s opt out notice or the objection notice is reduced from one month to seven days for large shop workers, and from three months to one month for those working in small shops.

Workers will also have a new right to claim for any detrimental treatment they receive for objecting to working longer hours, or to claim automatic unfair dismissal if they are dismissed for this reason. Employment tribunals will also have a new power to award compensation (capped at two to four weeks’ pay) on top of any other award they make for the employer’s failure to provide an explanatory statement.

The introduction of new, unilateral rights for employees not to work additional hours on Sundays, together with a reduction in the notice period for employees in large shops who wish to stop working on Sundays, could lead to potential headaches for retail employers trying to ensure sufficient levels of staffing for weekend trading.

The amendments also remove the prescribed form for employers’ explanatory statements, although future regulations may stipulate the content for these. And we could see future legal proceedings on what the term “normal Sunday working hours” (to be defined in future regulations) means if it is similar to the concept of “working time” under the National Minimum Wage Regulations 2015 or the Working Time Regulations 1998.


Story via – http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2016/05/03/employers-should-be-wary-of-rule-changes-for-sunday-shop-workers.aspx

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