high streetOn 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.

Since the entitlement not to work on Sundays has a statutory footing employees who are dismissed or treated in an unfavourable way as a result of choosing not to work on Sundays may be entitled to claim unfair dismissal and, where appropriate, constructive unfair dismissal. In addition employees who object to working on Sundays on religious grounds and suffer a detriment as a result, may well have a strong claim for discrimination. Incidentally, a more contentious area is determining employee rights when an employee exercises or wishes to exercise religious observance on a day which is not a Sunday. On the face of it, similar protection to that available to, say, Christians who object to working on Sundays, should be provided although the absolute right underpinned by legislation is not available for them.

Frances O’Grady, general secretary of the TUC has made clear her opposition to the proposal:

Turning Sunday into another Saturday for major retailers would take precious family time away from shopworkers. There is no pressure for this from shoppers and it may push some smaller retailers out of business.

The Government can also expect vocal opposition from churches and other religious groups who will undoubtedly see this as a further erosion of the place of the church, or at least the Christian churches, in society generally.

The consultation closes on 16 September.