Legal Q&A: Sunday working

Joanna Dodd, senior associate at Clarion, answers employers’ questions on the law relating to Sunday working.

Can I make my employees work on Sundays?

In most industries, the answer is yes – as long as it is written into the employees’ employment contracts. However, special rules apply to employees who work in shops and betting shops. They have a right to opt out of Sunday working by giving their employer a signed and dated notice, which will take effect after three months. In addition, the retailers or betting businesses must inform their employees of their right to opt out.

Should staff be paid a higher rate of pay for working on Sundays?

There is no obligation on an employer to pay employees a premium for working on a Sunday. However, if the employer wants to limit the number of employees opting out, a higher rate of pay might help with this.

What happens when the majority of staff opt out of working Sundays to the extent that the business can’t function at weekends?

It is not legal to refuse to permit shop or betting workers to opt out of Sunday working, whether for business needs or otherwise.

An option could be to consider employing Sunday workers or agency staff to cover Sundays. Workers employed only to work on Sundays cannot opt out and the opt-out rules only relate to employees, so agency staff will not be included. A higher rate of pay and/or other incentives for Sunday working may also dissuade employees from opting out.

What constitutes a shop for the purposes of the Sunday working rules?

For the purposes of the Sunday working rules, a “shop” includes any premises where a retail trade or business is carried on. As such, hairdressers, beauty salons and many other trades will fall within this definition and employees will have the right to opt out of Sunday working.

What happens if employers fail to inform employees about their right to opt out of Sunday working?

An employer who employs shop or betting workers has to send a statement to those employees informing them of their right to opt out of Sunday working. This statement must be in a specific format and must be sent within two months of the employee starting work.

If the employer does not send this statement within the time period, any opt-out notice sent by a shop or betting worker will take effect after a month (rather than after three months).

Are employees who follow religions where Sunday is considered a day of rest entitled to refuse to work on Sundays, even if their employment contract states that they should?

Requiring such an employee to work on Sundays could trigger a claim for indirect discrimination on the grounds of religion or belief. This is the case where a provision, criterion or practice puts workers of a particular religion or belief at a disadvantage. Employers that do so must be able to objectively justify such a decision as being a proportionate means of achieving a legitimate aim.

A requirement to work Sundays will disadvantage employees who hold a religious belief that Sunday should be a day of rest. As such, it will only be legal if it can be objectively justified.

A recent case involving a residential children’s home found that a requirement for all staff to work Sundays was objectively justified and therefore legal. In that case, the tribunal found that the requirement was reasonable as the home had to ensure there was an appropriate gender balance and seniority on each shift, provide a cost-effective service and ensure continuity of care for the children. In addition, the tribunal noted that the employer tried to arrange the shifts to allow the claimant to attend church on Sundays.

In other cases with a different set of circumstances, a tribunal might find that a requirement for all staff to work on Sundays is not justifiable and amounts to indirect discrimination. Accordingly, it is advisable for any employer faced with an employee asking to be excused from Sunday working for religious reasons to look at whether or not there are any ways of accommodating that request, rather than simply rejecting it outright.

Joanna Dodd is a senior associate at Clarion