In the third of our series of post outlining matters of particular interest to the retail sector, we consider the right of workers to refuse to work on a Sunday.
In the Days of Old
Some of us can still remember the days when shops all used to close on Sundays and those shops that stayed open, such as newsagents, had to cover certain products with a sheet or rope them off as they were prevented from selling them on a Sunday.
Those days are no more and, although retail hours can still be restricted on a Sunday, increasing numbers of businesses are realising that they have to open on a Sunday or risk losing out on a day’s valuable trading.
In general, this has been accepted by employees and can often fit in well with people who have other commitments during the normal working week. What about those individuals, though, who – perhaps for religious or other reasons – do not want to work on a Sunday? What rights do they have?
Opting Out of Sunday Working
Shop workers have particular rights in relation to Sunday working. A “shop worker” pretty much means what it says on the tin – an individual who is required to work on any premises where retail trade or business is carried on. This includes barbers, hairdressers, and hire companies (except those that hire to trade), but excludes catering businesses, or the sale of programmes or similar items at theatres or places of amusement.
Shop workers who may otherwise be required to work on a Sunday are able to “opt-out” of working on a Sunday if they comply with the notification requirements set out in legislation. After they serve the objection notice, there is a period of three months until the objection comes into effect.
Statement of Rights
Where a shop worker has the right to opt out of Sunday working, the employer must give them a written statement explaining the steps they must follow to serve an opting-out notice. This statement must be in a particular format and must be given to the employee within 2 months of him/her becoming entitled to opt out.
If the employer fails to provide the statement, then any opting-out notice served by the shop worker will take effect within one month (rather than the usual three).
Protection from Dismissal and Detriment
Workers who opt out of Sunday working in accordance with the legislation are protected from dismissal, selection for redundancy or from being subjected to any other detriment.
Any dismissal of an employee for asserting their statutory right not to work on a Sunday will be automatically unfair, and the employee will not need the usual 2 years’ continuous service to bring such a claim.
If the reason for the refusal to work on a Sunday is linked to religious beliefs, the employee may also have a discrimination claim following any detriment or dismissal which would potentially mean unlimited damages.
Offering Incentives to Work on a Sunday
It is open to an employer to offer enhanced rates of pay, or other additional benefits, to incentivise workers not to opt out. Making such additional payments (or providing additional benefits) will not count as a “detriment” to the employee who refuses to work on a Sunday.
Obvious examples of incentives are increased hourly rates and bonuses, but other non-cash benefits could include increased time off (to reflect time worked on a Sunday).
What if Everyone Opts Out?
Unfortunately, there is no “right of refusal” to an opt out – in other words, if every employee lodges an objection notice, then the employer cannot “refuse” to honour any of those objections on the basis that, for example, this would mean that he cannot run his business on a Sunday.
If an employee is employed to work only on a Sunday, then that employee cannot opt out. So, in practice, if all of your employees suddenly decide to opt out, then you can remedy this by recruiting workers to only work on a Sunday. Alternatively, you could offer incentives, as discussed above, or try to negotiate with staff (recognising that it is a negotiation and that you cannot force them to agree) to try to find a solution that is acceptable to them, for example introducing a rota system so that they only have to work one Sunday in every four.
The Right in Practice
In practice, few employees go through the formal “opt out” process because this is a matter that is usually discussed upon recruitment and any objections are thus raised at that time. This issue usually arises when a shop which has historically been closed on a Sunday decides to extend its opening hours to include Sundays as well (and staff are contractually obliged to work on a Sunday if requested), and existing staff raise objections to working on that day.
If that situation applies to you, then the best advice would be to approach your employees in a spirit of cooperation. Talk to them about what they object to, and see whether there are any solutions that can address their concerns while still enabling you to run your business in the way you choose. Ultimately, though, if a shop worker lodges an objection to working on a Sunday, then there is nothing that you can do to force them to do so.
It is worth remembering the obligation to provide staff with a statement of rights within the required timescale, as failure to do so will mean that any objections come into force more quickly and will thus leave you less time to ensure that you have adequate cover on a Sunday.
Of course, it is also worth mentioning that if the employee is not a qualifying “shop worker”, then they have no statutory right to opt out and the terms of their contract will determine whether they are obliged to work on a Sunday. Also, if there is no provision in the contract requiring them to work on a Sunday if they are asked, then you will need to get their permission to a variation in the contract – which is a whole new blog post in itself!
If you have any queries about any of the issues raised in this post, or any other point of employment law, please speak to a member of Sherrards’ Employment Team, led by Joanne Perry and Mark Fellows and based in St Albans, Hertfordshire.