Sunday trading: how employers can avoid the pitfalls

Following a consultation launched by the Government, will employers be able to lawfully compel staff to work additional hours? Lloyd Davey and Sarah Taylor of law firm Stevens & Bolton LLP look at the issues that may arise from increased Sunday working.

Currently, large shops (those of more than 280 square metres in size) are only permitted to trade for six hours on a Sunday. But this could change as a result of the Government ‘s well-publicised consultation on devolving powers to city mayors and local authorities to extend Sunday trading. If restrictions are reduced or lifted, can you lawfully compel your staff to work additional hours? And what other issues might arise?

Lawfully extending working hours

It will be more difficult to vary or extend existing working hours to accommodate longer Sunday trading where employees’ contracts expressly state their working hours. Some contracts provide greater flexibility by not requiring a contractual change to bring new working hours into effect. Even so, unless there is very clear wording, if you are changing the contracts of 20 or more employees, collective consultation obligations may be triggered.

Failure to adequately consult about such changes could result in an employer being ordered to pay up to 90 days’ gross pay to each affected employee. If working hours are determined by a collective agreement, the employer will need to enter into collective bargaining with the recognised union(s) to bring about any valid changes.

Existing protections for employees

Overlaying the contractual framework are certain protections for shop workers. The key date is 26 August 1994. Very long-serving shop workers (ie those who joined before 26 August 1994) cannot be compelled to work on a Sunday (unless they are only employed to work on a Sunday). All other shop workers (employed to work other than only on a Sunday) have the right to opt out of Sunday working three months after issuing an opt-out notice.

It is automatically unfair to dismiss an employee for opting out of Sunday working (or for indicating an intention to opt out) and the normal two years’ service requirement to bring an unfair dismissal claim does not apply. The Government has confirmed that it has no plans to change these protections.

Risk of discrimination claims

Workers can, in theory, therefore, be compelled to work on Sundays during the three month window until their opting-out notice takes effect, unless this amounts to unjustified indirect discrimination. This is most typically on grounds of religion and beliefs or childcare responsibilities.

Employers with larger workforces will find it more difficult to justify requiring certain protected groups to work on a Sunday, where there is a large pool of employees who are able to work on this day. In many cases, the risk of a discrimination claim will outweigh the benefit of forcing a reluctant member of staff to work on Sundays for a period of three months.

Avoiding detriment claims

Workers have the added protection of the right not to be subjected to a detriment for opting-out of Sunday working. Employers should take care to avoid the fact that an employee has opted-out of Sunday working from influencing (directly or indirectly) employment-related decisions, such as selection for promotion or for redundancy.

Incentivising staff to work on Sundays

Many employers already pay a premium rate for Sunday working. Depending on the level of religious diversity among the workforce, you may need to justify why it is proportionate to pay a premium for Sunday working and not for work undertaken on days significant to other religions.

For example, it may be difficult to justify paying a premium for Sunday working if your workforce is predominantly Jewish. Remember also that a regular premium for working on Sundays would need to be included in holiday pay calculations.

Sustainability of Sunday rates of pay

If Sunday trading is extended, will employers be able to sustain existing rates of enhanced pay? Employees’ consent is needed to reduce rates of pay for Sunday working or risk claims of constructive unfair dismissal, unlawful deductions from wages or breach of contract.

An employer may be successful in obtaining consent if rates of pay were reduced in exchange for other benefits, or when awarding promotions or other pay rises. It may be necessary to collectively bargain new rates of pay with the recognised union(s).

Ensure the health and wellbeing of your employees

There are concerns that requiring workers to increase their hours on a Sunday will have a negative effect on their health and wellbeing. As their employer, you are responsible for the health and safety of your staff. You should ensure compliance with the Working Time Regulations 1998 in relation to rest breaks, and should closely monitor and record the working hours of any workers who have not opted out of the 48-hour weekly limit.

Atypical working

If you find that your workforce is largely resistant to increasing their Sunday working hours, then you could consider recruiting a more flexible labour force, or implementing part-time, temporary or zero hours arrangements. This may be a solution but you will still have to navigate your way around specific employment protections for such workers.