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Extending retail opening hours during the Olympics and beyond – will staff agree to it?

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It took an act of Parliament to allow shops to extend their opening hours during the London 2012 Olympics. Now, the debate over whether to loosen Sunday trading restrictions in England and Wales has been reignited.

MPs and trade bodies focused on economic growth have traditionally been keen to allow retailers a free reign, but others have raised concerns over the impact on employees. Of course, staff have for some time had the opportunity to opt-out of working on Sundays, but religious considerations and the risks of making widespread changes to employment contracts should be given careful thought before making the plunge into Sunday trading.

Sunday working opt-out

Ordinarily, shops that are larger than 280 square metres (3,000 square feet) can only open for up to six hours on Sundays, and only between the hours of 10am and 6pm.

As it stands, employers cannot dismiss staff or subject them to a detriment because they have opted-out of working on Sundays. If an employee doesn’t want to work on a Sunday, all they have to do is provide a written notice to their employer stating that they object to Sunday working; this will usually then take effect after three months.

Similarly, employers must give any employees who work on Sundays or who might be required to work on Sundays a written notice explaining options for opting-out. The notice must be issued within two months of the employee being required to work on Sundays. Otherwise, he or she only has to give one month’s notice that they want to opt out of Sunday working rather than three.


Religion and belief discrimination

The technical aspect of the opt-out regime is, however, only one element of the Sunday trading employment challenge. What is equally important is that businesses exercise caution towards employees who say that they cannot work on a certain day for religious reasons. If, for example, practising Christian employees who attend church on Sundays were made to work on that particular day, their employers could face a claim for indirect discrimination. Extended Sunday opening hours, should the government decide to run with what has to date only been vague indications, then this risk would become even more pronounced: employees might currently be able to attend Church as well as work on Sundays but could struggle to do so with additional hours. By applying a provision, criterion or practice equally to everyone, employers would effectively disadvantage practising Christians who wish to attend Church on Sunday.

Critics might now say that employment legislation all too frequently focuses on the needs and wishes of employees. However, a requirement to work on Sundays could be justified if it was proven to be a proportionate means of achieving a legitimate aim e.g. a real business need.

Let’s imagine that the coalition managed to relax the current Sunday trading laws, the battleground would be whether the policy of requiring employees to work on Sundays was in fact proportionate.

As a rule of thumb, treating everyone fairly remains the mantra of employment law. In that sense, automatically allowing Christians to have every single Sunday off – leaving people who are not religious and employees of other faiths to work on Sundays – is likely to cause friction. Instead, employers would be advised to carefully consider all requests not to work on Sundays and respond according to the needs of the business.

Changing contractual terms and conditions

For some employers, simply communicating that working hours will change isn’t sufficient. It may be that some or all of their contracts of employment specify which days of the week employees work.

If Sunday trading laws are relaxed, the easiest way to vary employment contracts by far would be to do so with the consent of the employees. This can be as simple as sending them a letter which sets out the changes and asks everyone to sign it. And should one or more members of staff ignore a request to sign a letter but still turn up to work on Sundays without complaining, then they will be taken to have impliedly agreed to the change.

That an entire workforce agrees to a change of employment terms is, however, rare but an incentive often helps. This could be a one-off bonus for working additional hours on Sundays or a slightly increased hourly rate of pay.

Ultimately, if someone refuses to cooperate and wishes to stick with the old terms, things can get tricky. In such a scenario, a drastic option would be to dismiss them and then offer them a new job on the new terms. However, such a move could damage moral and should only ever be done in consultation with an experienced employment lawyer. Otherwise, a claim for unfair dismissal is almost guaranteed.

Whether or not the government decides to progress with the idea of relaxing Sunday trading laws, employers in the retail sector should treat the subject with sensitivity and care.

 

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