The Enterprise Act 2016 received royal assent on 4 May 2016 and contains significant provisions strengthening the rights of Sunday shop workers. This has gone largely unnoticed by many retailers due to the government's initial proposal to devolve powers over Sunday trading hours to local authorities being defeated in the House of Commons.
It is not known when these new provisions will come into force; however, employers should start thinking about the potential impact of these provisions to avoid future operational headaches.
- Shop workers can opt out of Sunday working by giving three months' notice, unless Sunday is the only day they have been employed to work. Employers are unable to reject notice to opt out of Sunday working.
- If a shop worker suffers a detriment because they opted out of Sunday working, this will be considered unlawful and any dismissal for this reason will be automatically unfair.
- Employers must provide new recruits, who may be required to work on Sundays, with an explanatory statement clarifying their entitlement. Failure to provide an explanatory statement reduces the applicable notice period from three months to one month.
When the new provisions of the Enterprise Act 2016 come into force, employers will need to consider the following:
- The notice period to opt-out of Sunday working will be reduced from three months to one month for workers who work in large shops (shops with an internal floor area of 280m²). For those working in smaller shops, the notice period of opt out of Sunday working will remain at three months.
- Workers in both large and small shops, excluding betting shops, will be able to object to working additional hours on Sundays beyond their normal Sunday working hours. A worker can do this by providing their employer with an objection notice (one month's notice for workers in large shops, and three months' notice for workers in small shops). Employers will not be able to reject an objection notice.
- Employers must provide an explanatory statement to new recruits and shop workers already employed, who may be required to work on Sundays, when the new provisions come into force. Failure to provide an explanatory statement will reduce the notice period to seven days for workers in large shops, and remain at one month for all other workers. The Employment Tribunal will have the power to award compensation, capped at two to four weeks' pay, to a worker who has not received an explanatory statement from their employer.
Although these changes may appear to favour the workers and provide little power to the employer, there are some practical solutions that an employer can try to ensure adequate staffing levels on Sundays.
Firstly, workers who are only employed to work on Sundays are excluded from being able to opt out of Sunday working. Therefore, an employer may want to consider employing Sunday-only staff, in combination with regular, experienced staff. By doing this, the regular staff would work a more acceptable amount of Sundays, for example, one Sunday a month.
Secondly, there is no obligation on an employer to pay Sunday workers a premium. However, to limit the amount of workers opting out of Sunday working, an employer may wish to pay Sunday workers a premium or provide them with additional benefits to discourage workers from opting out of Sunday working.
Written by Louise Workman and Jessica Tallon.