This latest article in our series on employment law changes following the election focuses on a proposal which was not actually featured in the Conservative manifesto. It was announced recently, with much fanfare, that the government would give “hard working families” the gift of time and flexibility by allowing for more time to shop on a Sunday. The government proposes to devolve power to local authorities to determine whether to loosen current Sunday trading restrictions. Whilst the draft legislation is not strictly employment law statute, if implemented, it will likely increase the number of fashion retailers in particular who would like their employees to work on a Sunday or extend their hours. This article, therefore, explores how fashion retailers should be dealing with Sunday working.
The current restrictions on Sunday trading
Shops in England and Wales with square footage exceeding 280 square metres are limited to trading only six hours on a Sunday and those hours must be within 10am and 6pm. Small stores may currently open all day.
The new proposals
The proposals are currently in the consultation stage, however, if introduced, local authorities or local mayors will have the power to determine whether to permit larger stores to open for extended hours on a Sunday; and whether this will be throughout their respective areas or only parts of an area – for example only certain high streets, to allow the greater footfall to also benefit small independent shops. Rules relating trading on Easter Sunday and Christmas day will not change.
Shop employees and Sundays
Employees’ statutory rights regarding working on Sundays apply to all shop working, regardless of the square footage of the store. Those employees who commenced employment prior to 26 August 1994 cannot be required to work on Sundays. Those who commenced work after this date, unless employed to work on Sundays only, are able to opt out of working on a Sunday at any time by giving three months’ notice. If the laws change, more individuals may seek to rely on this opt out.
The current proposals do not include changes to these employee protections
In the event an employee were either to be dismissed, selected as redundant ,or suffer any other detriment as a result of exercising the Sunday opt-out, their dismissal would be automatically unfair. There is no minimum length of service requirement for an employee to bring such a claim. Note there is no detriment if employees are paid a greater rate for working on Sundays.
Will retail staff now have to work for longer on a Sunday?
Even if there is no opt-out in place, any extension of Sunday trading hours will not automatically entitle retailers to impose longer working hours on staff. The employment contracts of fashion retail staff will often contain a minimum number of hours of work that have to be provided by the employer. However, the contract may not necessarily oblige employees to work in excess of those hours. The contract should also be checked to see whether the employer can change the days of work (to include Sundays) or change the hours. Any desire to extend employees’ working hours to correspond with extended trading hours will need to accord with the employee’s contract otherwise the contract may need to be changed. Any such change to an employment contract will be a fundamental one and therefore cannot be imposed unilaterally without risking a breach of contract claim and possibly a constructive unfair dismissal claim.
What if no-one wants to work on a Sunday?
So you now have the right to trade for longer. But what if you do not have the staff on the shop floor?
The new proposals do not address this issue and the existing legislation does provide that the right to opt out does NOT apply to those who are employed to work on Sundays only. A possible option is to recruit sufficient numbers of Sunday-only staff and then to rotate regular employees so that they do not have to work Sundays often (say, only once a month). In conjunction with a higher rate of pay, this may be an acceptable deal to regular staff who may then agree to a change in their working pattern. Any such agreement should be documented.
What if an employee objects to working on a Sunday for religious reasons? In the first instance, a shop worker would be able to rely on the statutory protections relating to shop workers but employees also have religious discrimination rights. And what if opening on a Sunday means that you will also have to consider more Sunday working for warehouse staff, delivery drivers etc.?
Well there is relatively helpful case law on the issue with authority coming from the Court of Appeal. Whilst forcing an employee who has a “Sabbatarian” belief ( for example, that Sunday should be a day of rest or because they wish to worship on a Sunday) to work on a Sunday can be an indirectly discriminatory practice on the grounds of religion or belief, in certain circumstances such a practice can be objectively justified.
Objective justification can render indirect discrimination lawful, if an employer can prove that the practice was a proportionate means of achieving a legitimate aim.
For further information about this topic, please contact Audrey Williams.