Retail Shop Workers
Some shop workers can not be required to work on Sundays because of their protected status or they have opted out of working on Sundays. In both cases, such staff are able to refuse to work on Sundays. A dismissal will be automatically unfair.
Protected Employment
Protection applies to an individual who was employed as a shop worker on 26th August 1994 (4th December 1997 in Northern Ireland) and
a) is not employed on a contract that is for working only on Sundays;
b) has been employed continuously since that date;
c) remained a shop worker throughout his/her continuous employment;
d) met those conditions still when dismissed or suffered a detriment or other attempts by the employer to require him/her to work on Sundays.
Meeting those conditions gives a shop worker protected status against being required to work on Sundays. Protection also applies to staff whose contract contains a clause that the individual can not be required to work on Sundays which was present after or before the above dates. Protection does not apply if the contract is for working only on Sundays.
Opting Out of Working on Sundays
If an individual does not meet the above conditions, he/she can still opt out of working on Sundays provided that:
i) his/her contract is not specifically for working only on Sundays i.e. not bound to work on other days as well;
ii) the contract states that the individual may be required to work on Sundays;
iii) an opting out formal notice is given to the employer and the individual continues to work on Sundays, if required, for the following three months – in which case, protection becomes effective after three months from when the notice was provided to the employer.
The notice must state that you object to working on Sundays and it is signed and dated. It is not necessary to give fuller reasons for your decision. You should request an acknowledgement of the receipt of your opt out notice.
If you ‘opt-out’, your employer is not required to make up your ‘Sunday hours’ during the rest of the week i.e. you will have less pay as less hours will be worked in future.
TIP – Managers should note that they have a duty to notify staff who are subject potentially to work on Sundays of their right to opt out. Formal notification must be given to such staff within two months of their start date. Failure to do so means that the opt out notice of the employee becomes effective after one month rather than three months.
Extent of Protection
Staff to whom the above sections are applicable will be treated as having been automatically dismissed if breaches of the right not to work on Sundays arise. If you opt out, you should not be disciplined or treated less favourably because of your objecting to working Sundays. Less favourable treatment would include matters such as being denied overtime, promotion or training or access to benefits because of your refusal to work on a Sunday. However, if staff working Sundays are offered an enhancement for that, it does not follow that it would be a detriment if you were not offered the same.
In Scotland, employees only come under that protection if their contracts do not require them to work on Sundays. Sometimes such clauses are only shown in a staff handbook or a ‘fuller’ edition of the contract.
Emergencies
In an emergency, you may offer to help out but you need to make it clear that you are not opting in to Sunday working but responding to the emergency situation as a one off event.
Betting Workers
Similar rights to the above apply to betting workers who have been with the same employer since 3 January 1995 or earlier.
A betting worker is defined as a shop worker either in a licensed betting shop or at a racing track for a licensed bookmaker.