Government announces consultation on devolving Sunday trading rules

On 5 August the Government commenced a consultation on allowing local areas to set their own Sunday trading rules. Larger shops (over 3000 square feet) have been restricted to a maximum six hours and it is felt that this is out of keeping with on-demand shopping available elsewhere, particularly online. The options under consideration are devolving powers to local areas, perhaps through “metro mayors”, or more widely by devolving the powers to local authorities across England and Wales. It is not proposed to alter the rules applying to Easter Sunday and Christmas Day.

From an employment law perspective this proposal raises the question of protection of workers who do not wish to work on Sundays, for religious or other reasons. Shop workers who commenced their employment before 26 August 1994 cannot be required to work on Sundays unless they have opted in to do so or are employed to work only on Sundays. Other employees have the right to give their employer an opting-out notice which, with effect from three months from the date of the notice being served on the employer, gives the employee the right to opt out of Sunday working. The right is absolute and cannot, such as with requests for flexible working, be refused by the employer on the ground of business needs or otherwise.

There is no requirement for employers to pay a higher rate for working on Sundays, although many choose to do so in order to encourage employees to give up their Sundays and meet staffing requirements.

It is often overlooked that employers who have a requirement for staff to work on Sundays must tell them in writing that they have the right to opt out. The written notice must be provided within two months from the commencement of employment and failure to do so means that an employee only needs to give one month’s notice in order to opt out.