Legal Q&A: Extension to Sunday trading hours during the Olympics

One of the big announcements in this year’s Budget was the proposed relaxation of Sunday trading rules during the 2012 Olympics.

This will see businesses allowed to extend Sunday opening hours during the eight-week Olympic period, starting on Sunday 22 July 2012. Normally, the Sunday Trading Act 1994 prohibits large shops (those with a relevant floor area exceeding 280 square metres) from serving retail customers on a Sunday outside the hours of 10am – 6pm and for a period in excess of six hours.

Q Can employees be made to work on Sundays during the Olympics?

This will depend on each employee’s contract of employment. If staff are contracted to work at specific times, consent will be required for any change. Even if the contract does not set out a specific work pattern, a right to a specific working pattern may be a contractual entitlement through custom and practice.

If a contract contains a right to vary working patterns, care must be taken in exercising it to avoid breaching the implied term of trust and confidence. There are also special rules protecting shop staff from working on Sundays under the Employment Rights Act 1996, see below.

Q Are there special statutory rules which regulate the hours staff can work on a Sunday?

If an employee’s contract states that they cannot be required to work on a Sunday, the Employment Rights Act 1996 protects them from detriment or dismissal for refusing to do so. Employees whose contracts state that they may be required to work on a Sunday can “opt out” of Sunday working on notice, unless the employee is contracted to work on Sundays only.

The Employment Rights Act 1996 does not regulate hours of work. These are found in the Working Time Regulations 1998, which provide for a maximum working week of 48 hours, averaged out over a period of weeks. There is no specific restriction on Sunday working hours but any extra shifts may impact on this maximum – bear in mind that this is calculated taking into account all working commitments, not a specific employment. Employees can give written notice to opt out of the maximum working week.

Example: A part-time recent joiner may be required to work Sundays to cover illness and holidays. She has not yet been asked do so but is refusing to work the Olympic Sundays, claiming that it will conflict with church attendance and family time.

The employee will be protected from detriment or dismissal for refusing to work on a Sunday, under the Employment Rights Act 1996. Further, the Equality Act 2010 protects employees from detriment or dismissal on the grounds of their religion or belief. While family time is not specifically protected, the employee here may be successful in a claim of sex discrimination if she can demonstrate that she was asked, rather than male colleagues, on the assumption that she spent more time with her family during the week. Compensation for discrimination claims is unlimited.

Q Must a higher rate be paid for extra hours worked on Olympic Sundays?

Unless specific contracts state otherwise, there is no obligation to pay more than the normal hourly rate for additional hours worked, regardless of when these fall. However, increased hourly rates or time off in lieu may encourage volunteers to come forward and increase staff loyalty and retention in the longer term. Any such benefits should be clearly offered as “temporary” to cover these specific circumstances.

Q What steps should you take now?

  • Work out what staff cover you will need for extended opening and the cost.
  • Ask for volunteers. Ensure that shifts are allocated in a fair and non-discriminatory manner. Obtain express agreement to “temporary” changes to work patterns.
  • If volunteers or consent are not forthcoming, seek legal advice on how to proceed. Forcing an employee to work additional hours could leave an employer vulnerable to claims under the Sunday working provisions, for breach of contract and under discrimination law.
  • If you use agency staff, bear in mind your obligations under the Agency Workers Regulations 2010 and also internal training costs.
  • Keep an eye on the progress of the emergency legislation and the reaction of unions. The Government has indicated Royal Assent should be granted in early May 2012 and that it will be meeting with interested parties, including unions, retailers and employers’ groups prior to 24 April 2012. It may be appropriate to put in place a strategy to deal with any industrial unrest.

Paul Killen, employment partner, Osborne Clarke

FAQs from XpertHR on Sunday working:

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