Sunday working - enhanced rights for shop workers highly in doubt

20 February 2017

Back in March 2016, government plans to give local authorities the power to alter Sunday trading rules were defeated by an unlikely alliance of Labour, the SNP and Conservative backbenchers. But not all of the proposed changes to Sunday trading laws contained in the Enterprise Act 2016 fell by the wayside.

Provisions strengthening shop workers' rights in relation to Sunday working were passed. In particular, reduced notice periods for large shop workers wishing to opt-out of Sunday working and a new right for shop workers, regardless of the size of the shop, to object to working "additional" Sunday hours.

It was originally anticipated the changes would come into force in October 2016, as with many pre-Brexit employment law proposed changes, post-Brexit implementation dates have slipped down the Government's priority list.

It now looks increasingly unlikely that the enhanced rights for shop workers contained in section 33 and schedule 5 of the Enterprise Act 2016 will actually be brought into force any time in the foreseeable future, if at all.

What are the pending changes?

  1. Notice period for opting out to be reduced

    The existing three month notice period to opt out of Sunday working (unless Sunday is the only day they have been employed to work) will be reduced from three months to one month for workers who work in large shops - i.e. those where the internal floor space used for serving customers or displaying goods occupies more than 280 square metres. For those working in smaller shops, the notice period will remain unchanged at three months.
  2. New right to object to "additional" Sunday hours

    A new right for both large and small shop workers (but not betting workers) to object to working additional hours on Sundays beyond their "'normal Sunday working hours" simply by giving an objection notice to their employer. Employers will be unable to reject such notice.
  3. Revised written explanatory statement

    Not only new recruits, but also existing shop workers already employed at the date the amendments to the legislation takes place and who may be required to work on a Sunday, must be given a new explanatory statement. Employment tribunals will also have a new power to award compensation (capped at two to four weeks' pay) for the employer's failure to provide an explanatory statement.

Why are these changes significant?

The changes to Sunday working rights are likely to cause a significant administrative headache for some retailers. The introduction of new 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 altogether, may cause potential problems for retail employers trying to ensure sufficient levels of staffing for weekend trading.

Calculating workers' 'normal Sunday working hours' may also prove difficult. While 'normal Sunday working hours' is to be defined in future regulations, the Act suggests that a rolling calculation period may apply, which may challenge some retailers' HR systems.

An administrative headache averted?

Retailers may be relieved to hear that the implementation of the Sunday working changes is now understood to be on hold. The new enhanced rights were introduced into the Enterprise Act as part of a 'package of measures' including the power for local authorities to extend Sunday trading hours. As the provision to allow extended Sunday trading hours never made its way on the statute book, the government now wishes to take more time to consider such enhancement to shop workers' rights to object to Sunday working are in fact needed at all. As to timescale, well with Brexit priorities, further consideration unlikely to be any time soon.

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