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

Incentivising staff to work on Sundays

Many employers already pay a premium rate for Sunday working. Depending on the level of religious diversity amongst your workforce, you may need to justify why it is proportionate to pay a premium for Sunday working and not for work undertaken on days significant to other religions.

For example, it may be difficult to justify paying a premium for Sunday working if your workforce is predominantly Jewish and you do not pay a premium for Saturday working. Remember also that a regular premium for working on Sundays would need to be included in holiday pay calculations.

Sustainability of Sunday rates of pay

If Sunday trading is extended, will you be able to sustain existing rates of enhanced pay?  Employees’ consent is needed to reduce rates of pay for Sunday working or you risk claims of constructive unfair dismissal, unlawful deductions from wages, or breach of contract.

You may be successful in obtaining consent if you reduce rates of pay in exchange for other benefits, or when awarding promotions or other pay rises.  It may be necessary to collectively bargain new rates of pay with the recognised union(s).

Ensure the health and well-being of your employees

There are concerns that requiring workers to increase their hours on a Sunday will have a negative effect on their health and well-being. As their employer, you are responsible for the health and safety of your staff.

You should ensure compliance with the Working Time Regulations 1998 in relation to rest breaks, and should closely monitor and record the working hours of any workers who have not opted out of the 48 hour weekly limit.

Atypical working

If you find that your workforce is largely resistant to increasing their Sunday working hours, then you may need to consider recruiting a more flexible labour force (e.g. on part-time, temporary or zero hours arrangements).

This may be a solution to the immediate issue of staffing longer Sunday trading hours, but you will still need to navigate your way around the specific employment protections that exist for such workers.

Lloyd Davey is a partner and Sarah Taylor is a senior associate at Stevens & Bolton LLP.

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