Sunday working and enhanced rights for shop workers where are they?

Despite the government’s plans to give local authorities the power to alter Sunday trading rules being defeated last year, provisions strengthening shop workers’ rights (contained in the Enterprise Act 2016) did get the go ahead. So what’s happened to them?

It seems they have fallen victim to a delay following the Brexit vote and are not currently a government priority. It was thought that they’d be brought into force in October 2016 but, as yet, there’s no sign of them. Below we recap on the current position and the proposed changes.

Current position

Currently (see s. 36-43, 45 and 101 of the Employment Rights Act 1996), shop workers can opt out of working on Sundays by giving three months’ notice (unless Sunday is the only day on which they’re employed to work). They also have protections from unfair dismissal and being subject to a detriment for exercising such a right to opt out. Employers must inform Sunday workers, within two months of them starting work, that they can opt out. If they don’t, the employee’s notice period for opting out reduces to 1 month instead of 3 months.

Proposed changes

The new protections are contained in s. 33 and Schedule 5 of the Enterprise Act 2016 which amends the Employment Rights Act 1996. In summary the following changes to shop workers’ rights in England, Scotland and Wales are proposed:

• The opting-out notice period for shop workers at large shops will be reduced from 3 months to 1 month.
• There will be a new right for shop workers to opt out of working more than their ‘normal Sunday working hours’; 1 month’s notice for workers in large shops and 3 months for those in smaller shops.
• Employers will be required to provide workers with an explanatory written statement clarifying their entitlements and including information on where they can find support and advice about their rights.
• Where an employer fails to provide such a statement, the notice period will, in respect of both opt-out rights, be automatically reduced. For shop workers in large shops the notice period will be reduced from 1 month to 7 days, or for shop workers in smaller shops, from 3 months to 1 month.
• Any contractual provisions that contradict these rights will be unenforceable and any detriment suffered by workers because they have refused to follow voided contractual provisions or served notice will be unlawful. Any dismissal for these reasons will be automatically unfair.
• Where a related employment tribunal claim is successfully brought and it is found that an employer failed to notify a shop worker of their opt-out rights as required, the tribunal will be able to award the shop worker a minimum award of 2 weeks’ pay (or 4 weeks’ pay where the tribunal considers it just and equitable). Note this is a ‘related’ claim and not a stand-alone right to claim for failure to notify and it’s unknown at present whether this is full contractual pay or pay capped at the statutory rate; more likely it’ll be the latter.

Opting out of Sunday working

• A shorter notice period of 1 month will apply to workers in large shops (internal floor area of 280 square metres or more).
• Where a large shop fails to provide an explanatory statement within 2 months of the worker starting work (or within 2 months of the new provisions coming into force, in the case of an existing worker), the notice period for opting out will be reduced to 7 days.
• The existing 3-month notice period (1 month where no explanatory notice is provided) will apply to workers in other shops.
• The existing protections from detriment and dismissal in place for workers who opt out of Sunday working will remain in place.

Objecting to additional Sunday hours

• In addition to the revised opt-out regime, shop workers will also be entitled to object to working hours beyond their ‘normal Sunday working hours’ by giving written notice to their employer (1 month for large shop workers and 3 months for other shop workers), referred to as an ‘objection notice’ in the Act. Employers will not be able to reject an objection notice.
• ‘Normal Sunday working hours’ is not defined, although future regulations may provide for this to be calculated by reference to a worker’s average Sunday working hours over a defined period. The Act also suggests that a worker may need to complete a period of qualifying period before they have the right to serve an objection notice.
• Employers are also required to provide an explanatory statement in relation to objection notices. Where an employer fails to provide an explanatory statement within 2 months of the worker starting work (or within 2 months of the new provisions coming into force, in the case of an existing worker), the notice period for opting out will be reduced to 7 days for workers in large shops and 1 month in other shops.
• Similarly, shop workers who serve objection notices receive the same protections from detriment and dismissal as those who opt out of Sunday working. Once the relevant notice has expired, any contractual provision requiring the shop worker to work additional hours will also become unenforceable.