Most employers of shop workers are probably already aware that workers are able to opt-out of Sunday working upon serving written notice. Under the current law, Sunday workers must give a minimum of three months’ notice to their employer, informing them that they no longer wish to work on Sundays. After the three months have passed, employers must not schedule the relevant worker on any Sunday shifts. Under the current law, an employer is required to simply notify all affected staff of their right to opt-out of Sunday working.
So what’s changing?
Though a firm date has not yet been set by parliament, changes to the right to opt-out of Sunday working for shop workers have already been drafted, and are set to amend the Employment Rights Act.
The changes likely to come into force include:
The right for workers in large shops to give only one months’ notice, instead of three, that they would like to opt-out of Sunday working. This means that after one month’s receipt of notice, the relevant worker must not be scheduled onto any Sunday shifts.
Another potential change is the right for Sunday shop workers to opt-out of working additional hours or compulsory overtime on a Sunday. Although workers in small shops are likely to have to give at least three months’ notice of this, workers in large shops will only have to give one month.
Employers will be required to provide staff with an ‘explanatory statement’ informing them of their right to opt-out of Sunday working and working outside of their normal hours on a Sunday. The statement must also inform workers of organisations that can provide them with support or advice about their rights, i.e. the Citizens Advice Bureau.
This statement will have to be produced and circulated within two months of the law changing where existing staff are concerned. For new starters, the same information must be provided within two months of their start date, in line with the right to be given written terms and conditions, or a contract of employment.
Workers must not be penalised or dismissed for opting out of Sunday working, nor should they be automatically selected for redundancy for this reason.
What is the definition of a ‘large shop?’
The Enterprise Act 2016 defines a “large shop” as a shop which has a relevant floor area exceeding 280 square meters.
Implications for ignoring the new rules
For employers who fail to adhere to the new rules, particularly the issuing of an ‘explanatory statement’ to existing staff within two months, the amount of notice a shop worker has to give to opt-out will be reduced; and the reduction is harsh. For workers in large shops this will reduce from one month to only seven days, and from three months to just one month for all other shop workers.
Much like the penalty for failing to issue terms and conditions of employment, a worker cannot bring a claim to the Employment Tribunal solely on the failure to provide an explanatory statement for Sunday shop workers. However, if the worker brings a claim of, for instance unfair dismissal, the Tribunal can award between two and four weeks wages in addition to any other damages, for the failure to issue the ‘explanatory statement’.
What if my employee is only employed for Sunday shifts?
Employees who are employed to work only on Sundays are not covered by the right to opt out.
So what should shopkeepers do?
Until a date is set for the new rules to come into force, there really isn’t anything to do. However, employers might consider practical steps including:
- Working out the Sunday average for existing staff;
- Ensuring workers have written terms of employment or a contract, which makes clear what their current Sunday obligations are;
- Consider rotating Sunday shifts to reduce the likelihood of staff opting out;
- Keep an eye on published updates to ensure they are not caught off guard when the changes come into force.
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