Retailers need to be start planning for changes to Sunday shop workers' rights which are expected to come into force soon

Background

The Enterprise Act 2016 (the Act) received Royal Assent on 4 May 2016 and contains some important changes in relation to Sunday working.

The government initially proposed devolving powers relating to Sunday trading to local authorities, but this proposal was rejected by MPs in Parliament in March. However, the Act does contain provisions which strengthen the rights of shop workers working on Sunday.

Potentially, these changes could be problematic for retailers from both an administrative perspective and in terms of ensuring sufficient coverage of staff working on Sundays. Retailers therefore need to start planning for them now.

When are the changes coming into force?

The Act will be brought into force by secondary legislation on dates to be announced. Further details of these changes will be contained in regulations which are expected shortly. However, the government is currently in a period of purdah as a result of the forthcoming referendum on the EU so nothing is likely to happen until the end of June at the earliest.

Summary of changes

At present, the law provides employees with the right to opt-out of Sunday working if they are (or may be) required to work on Sunday and provided they are not employed to work on Sundays only. If employees want to opt-out, they have to give three months' notice after which they cannot be required to work on Sundays (unless they opt back in on giving a further three months' notice.)

Once the changes come into force, on a date to yet be confirmed, the following will apply:

  • The opt-out notice period will reduce from three months to one month for large retail shops (namely those with floor space of at least 280 square metres). The three month notice period will remain for small retail shops
  • A new right for employees who already work on Sunday to opt-out of working additional hours above their 'normal Sunday working hours' using the above notice requirements. The regulations will clarify how employers calculate 'normal hours' for these purposes
  • Employers will be required to provide workers with an explanatory statement setting out the above rights in a prescribed form within two months of their employment commencing. The regulations will set out the information which should be provided in the explanatory statement.
  • Failure to inform employees about their opt-out rights will result in reduced opt-out notice periods (of seven days for those working in large shops and one month for small shops).
  • Tribunals will have a new power to order employers to pay compensation of two to four weeks' pay where an employer has failed to notify a worker of their opt-out rights.
  • Employees will continue to be legally protected from unfair dismissal or being subjected to a detriment as a result of exercising, or proposing to exercise, these enhanced opt-out rights.

What should retailers do next?

Once the regulations are published, retailers will need to:

  • brief all line managers about the changes so they are aware of workers' enhanced rights and the consequences of failing to abide by these
  • prepare explanatory statements for all new and current staff affected by these changes setting out their enhanced rights (within the prescribed time periods)
  • adjust any HR systems or working arrangements in line with the changes
  • consider how any staffing issues on Sundays will be addressed because of the shorted notice periods required to be given.