Sunday trading: How to extend retail hours while avoiding employment claims

At present, large shops (those with over 280 square metres) are only permitted to trade for six hours on a Sunday.

In a highly publicised consultation launched in August, the government sought the public’s views on devolving powers to city mayors and local authorities to extend Sunday trading hours. The consultation closed on September 16 and we await its outcome.

If Sunday trading restrictions are reduced or lifted, how would this affect your business? Could you lawfully compel your staff to work additional hours on a Sunday, and what issues might arise from increased Sunday working?

Lawfully extending working hours

It will be more difficult to vary or extend existing working hours to accommodate longer Sunday trading where employees’ contracts expressly state their working hours.  Some contracts, however, may provide greater flexibility.

Even so, if you are changing the working hours of 20 or more employees, collective consultation obligations may be triggered.  In such circumstances, if you fail to adequately consult about these changes, you could be ordered to pay up to 90 days’ gross pay to each affected employee.

If working hours are determined by a collective agreement, you will need to enter into collective bargaining with the recognised union(s) to bring about any valid changes.

Existing protections

There are statutory protections for shop workers that will apply in any event and the government has confirmed that it has no plans to change these protections.

The key date is 26 August 1994. Very long-serving shop workers (i.e. pre 26 August 1994 joiners) cannot be compelled to work on a Sunday (unless they are only employed to work on a Sunday).  All other shop workers (employed to work other than only on a Sunday) have the right to opt out of Sunday working three months after issuing an opting-out notice.

It is automatically unfair to dismiss an employee for opting out of Sunday working (or for indicating an intention to opt out) and the normal two years’ service requirement to bring an unfair dismissal claim does not apply in these circumstances.

Risk of discrimination claims

Workers can, therefore, in theory, be compelled to work on Sundays during the three month window until their opting-out notice takes effect, unless this amounts to unjustified indirect discrimination (most typically on grounds of religion and belief, or childcare responsibilities).

Employers with larger workforces will find it more difficult to justify requiring certain protected groups of workers to work on a Sunday, where there is a large pool of employees who are able to work on Sundays. In many cases, the risk of a discrimination claim will outweigh the benefit of forcing a reluctant member of staff to work on Sundays for the three month period until her opting out notice takes effect.

Avoiding detriment claims

Workers are also protected from being subjected to a detriment for opting-out of Sunday working. Employers should take care to avoid the fact that an employee has opted-out of Sunday working from influencing (directly or indirectly) employment-related decisions, such as selection for promotion or for redundancy.

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