The Government has announced that it will go ahead with its plan to devolve the power to extend Sunday trading hours in England and Wales to local authorities.

In August 2015 the Department for Business, Innovation & Skills published a consultation seeking views on options to devolve the power to extend Sunday trading hours to local areas. The consultation closed on 16 September 2015.

In our blog on the consultation, we questioned whether giving power to councils would in fact boost the economy and the extent of the public support for extension of shopping hours on Sundays.

On 9 February 2016 the Government announced it will go ahead with its proposal to devolve the power to extend Sunday trading hours in England and Wales to local authorities. The proposal will be implemented through amendments to the Enterprise Bill and the changes will take effect in the autumn.

However, there has been opposition to the proposal from some Tory backbenchers, trade unions and the Scottish National Party, who claim the measures are “anti-family”, “anti-small business”, “anti-workers” and “unworkable”.

The Government acknowledges that the proposed reforms have prompted a strong and diverse response, which it says confirms its view that decisions on extending Sunday trading hours are best made at local level so that local needs and wishes can be fully assessed and taken into account.

Shop workers’ rights

As part of the proposal the Government will also introduce legislation to strengthen the rights of shop workers in England, Wales and Scotland to opt-out of working Sundays, if they so choose.

The current law relating to shop workers who work on a Sunday provides them with the right to give notice to opt-out of Sunday working (except those only employed to work on a Sunday). The notice will take effect after three months.

Where a shop worker has the right to opt out of Sunday working, the employer must give them a written statement explaining the steps they must follow to serve an opt-out notice. This statement must be given within two months of the shop worker becoming entitled to opt-out and must be in a prescribed form.

If the employer fails to provide this statement, then the period between the shop worker serving an opt-out notice and it taking effect is reduced to one month.

Shop workers may not be dismissed, selected for redundancy, or subjected to any other detriment by reason of their decision to opt-out of Sunday working. The dismissal of a shop worker for asserting their statutory rights will be automatically unfair. In these circumstances, there is no qualifying period of service in order to be able to claim unfair dismissal.

The new measures

As part of the Government’s proposal the current protections will continue to apply, with some rights being strengthened:

  • The notice period to be given by workers at large shops (those shops with a retail floor area greater than 280 square metres) to opt-out of Sunday working will be reduced from three months to one month.
  • Workers will also have the new right of opting-out of working longer than their normal Sunday hours by giving one month’s notice at large shops or three months’ notice at smaller shops.
  • The duty on employers to notify employees of their rights about working on Sundays will be updated and clarified, introducing a requirement to include information where shop workers can find support and advice about their rights.
  • If employers fail to notify their shop workers, the notice period will, in respect of opt-outs, be automatically reduced from one month to seven days, for workers in large shops, or from three months to one month, for workers in smaller shops.
  • Guaranteeing a minimum award of two weeks’ pay where a related claim is brought and an employment tribunal finds that the employer failed to notify the shop worker of their opt-out rights.

Impact

Whilst we expect that some businesses, if their local authority decide to extend Sunday trading hours, will move quickly to take advantage of longer opening hours, others may adopt a more cautious approach to assess the business benefits for them in extending Sunday trading.

The reforms to the current law relating to shop workers who work on a Sunday and their right to opt-out are unlikely to have any significant impact for large employers. The changes recognise that smaller shops will need longer to organise alternative staffing than larger shops.

It will be interesting to see how councils seek to balance the wishes of their local citizens and the needs and economic benefits of both larger and smaller businesses and the extent to which Sunday trading hours are extended across England and Wales in the future.