11 April 2005
Anyone running a shop that is open on a Sunday needs to be familiar with special regulations about employing staff, particularly their right to refuse to work on a Sunday.
For most workers the rules about Sunday working depend on the terms of their contract of employment, however, special rights apply to shop workers.
Shop workers
A shop worker is an employee who, under his or her employment contract, is or may be required to do shop work. Shop work is work in or about a shop on a day on which it is open to customers. A shop being any premises where any retail trade or business is carried on.
The rights
The basic premise is that a shop worker in England and Wales has the right not to be forced to work on Sundays.
Further, they have the right:
- Not to be dismissed for refusing to work on Sundays
- Not to be selected for redundancy for refusing to work on Sundays
- Not to suffer any other detriment for refusing to work on Sundays. Detriment is not defined but could include, for example, denial of overtime, promotion or training opportunities
These rights do not apply to those employed exclusively to work on Sundays.
These rights apply regardless of age or length of service, but apply to employees only.
Application
The rights apply differently depending on whether the worker is "protected" or not.
Protected workers automatically have the right not to work on Sundays, others need to opt-out of Sunday working.
The decisive date is the 26 August 1994.
- A shop worker who started employment before 26 August 1994 is protected, they automatically have the right not to work on Sundays
- Shop workers, who under their contract of employment, cannot be required to work on Sundays are automatically protected
- A shop worker who started employment on or after 26 August 1994 and who is required to work on a Sunday under their contract of employment can give three months notice to their employer to opt-out of Sunday working
The opt-in
Shop workers can give up the right not to work on Sundays only by giving a written, signed and dated opt-in notice to their employer and then agreeing what Sunday work they are willing to do.
The right to opt-out is a continuing one. Any shop worker who opts-in to Sunday working has the right to opt-out again in the usual way.
The opt-out
Shop workers can opt-out of Sunday working by giving their employer three months written notice, saying they object to Sunday working, and they need not give a reason.
During the three-month notice period the worker still has to do the Sunday work specified by their employment contract if required. Workers are entitled not to be subject to a detriment by their employer during the notice period for giving such notice.
Written statement
Employers with shop workers who are, or may be, required to work on Sundays must give those workers a written statement explaining their opt-out right. If employers who fail to do this within two months of the employment start-date, the employee need only give one month's opt-out notice. The prescribed text for an opt-out statement can be found at the DTI website.
Complaints
Protected and opted-out workers have the benefit of the rights as outlined above. Workers who consider their right to have been infringed can make a complaint to the employment tribunal. The time limit for an application is three months from the date the right was infringed, although the tribunal can make extensions.
Broadly similar rights were extended to shop employees in Scotland on 6 April 2004.