Sunday Working: enhanced rights for shop workers
Employment and pensions E-Bulletin article
In February 2016 the government announced that it was pressing ahead with proposals to devolve to local authorities and mayors in England and Wales the power to set their own Sunday trading hours. To balance these proposals to extend hours, the Enterprise Bill sought to introduce additional protection for workers. For more information see our previous article.
Ultimately, the proposals to allow the extension of Sunday trading hours were defeated in the House of Commons. However, despite this, some significant changes to strengthen the rights of Sunday shop workers have made their way through into the Enterprise Act which received Royal Assent on 4 May 2016. These changes may have occurred somewhat "under the radar" for many retailers. We explain the changes below, when they are coming into force and what this may mean for employers.
The Enterprise Act 2016 will strengthen the rights of shop workers to opt out of working on Sundays with the introduction of the following provisions:
- Shop workers in large shops will be required to give only one month's notice that they object to working on Sundays, rather than the previous three months. 'Large shops' are generally those whose floor area exceeds 280 square metres.
- There will be a new right for all shop workers to opt out of working additional hours over and above their normal Sunday hours. This new right will also be subject to one month's notice for shop workers at large shops, and three months' notice for those at small shops.
- Employers' obligations to provide information about the new opt-out rights will be clarified. Employers will still be required to provide an explanatory statement notifying employees of their opt-out rights and this will need to include the right to opt out of working more than their normal Sunday hours. For new shop workers this will need to be provided within two months of the individual becoming a shop worker. For those who are already shop workers this will need to be provided within two months of the date the legislation commences. Future regulations will determine the commencement date and the form and content of such explanatory statements.
- Where an employer fails to notify their shop workers in accordance with these requirements, 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 one month to seven days and for shop workers in small shops, from three months to one month.
- After an employee has given the appropriate objection notice to working additional hours, any contradictory contractual provisions will be unenforceable.
- Any detriment suffered by workers because they have served notice or refused to work such additional hours will be unlawful. Any dismissal for these reasons will also be automatically unfair (and the individual will not need to have qualifying service to be able to bring such a claim).
- Where an employment tribunal finds 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 guaranteed minimum award (two weeks' pay, or four weeks' pay where the tribunal considers it just and equitable).
When is this coming into force?
The timing for these provisions to come into effect is not currently clear as regulations will need to be made to bring them into force and clarify what "normal Sunday Working hours" are and how this is calculated.
The Enterprise Act 2016 suggests that "normal Sunday Working hours" may be calculated by, for example, averaging the number of hours worked during a specified period allowing for variation in special cases. The regulations may also specify how this is calculated where the shop worker has not been employed for a specified period and may introduce a service requirement (of less than a year) for shop workers to be able to object to additional hours.
What does this mean for retailers?
Retailers should "watch this space" for the regulations as, when they come into force, they will need to, in particular:
- Amend and issue new explanatory statements within set time frames to shop workers including new recruits and current staff
- Implement processes to calculate what "normal Sunday Working hours" are for shop workers and
- Consider how they will practically address any gaps in staffing on Sundays (bearing in mind that shorter notice periods for objecting will apply)
We will keep you up to date with these developments but, in the meantime, if you have any queries on this and the practical steps employers can take to address these issues please contact employment partners and retail experts Patrick Howarth and James Collings.