Sunday trading has been a fact of life in the UK since the Sunday Trading Act 1994, which permitted retailers to open for business on a Sunday within certain parameters. With the growth of 24 / 7 / 365 online shopping and the pressure on the high street to compete with this ever growing market, the Government is currently consulting on devolving those Sunday trading rules so as to give local areas greater control over Sunday trading hours.

In the employment context, the Sunday trading rules have been subject to a developing wave of criticism over the years, as they give employees who are not specifically employed to work only on a Sunday the right to opt-out of Sunday working.  This absolute right applies whether or not Sunday is a religious day for the employee and without any regard to the impact their opt-out may have on a retailer's ability to open on a Sunday.

The current legislation provides simply that if an employee does not wish to work on Sunday they have to give 3 months' notice of this by way of a statutory opt-out.  The rules are strict and there is nothing than an employer can do if an employee opts-out of Sunday working or, indeed, if all of the employees in a store opt-out of Sunday working.

This has led to considerable criticism, as it essentially provides those individuals for whom Sunday is a religious day with more protection than the general discrimination legislation.  Further, and more importantly, it can seriously damage a retailer's ability to conduct business and increase costs by necessitating the recruitment of additional staff for Sundays, where necessary.  There is also a risk that any action taken against an employee who opts-out in the future, including redundancy or a failure to promote, would be deemed to be a detriment or dismissal for refusing to work on a Sunday – there is no qualifying period of service for such a claim.

The only lawful action an employer can take to prevent staff choosing not to work on a Sunday is to ensure that their employment contract specifically identifies the Sunday working hours.  If it does so, the employer then does not need to 'make up' an employee's working hours later in the week.  As long as the contracts are drafted properly, this is a legitimate way of putting some pressure on employees who choose to opt-out of Sunday working as they will then be out of pocket.  Other practical steps taken by employers include engaging Sunday only employees, using casual workers and not employees for Sunday working and/or increasing the amount paid for Sunday work to incentivise staff to work.

Increased Sunday trading hours are almost inevitable and most retailers would regard it as a very positive move.  Unfortunately, despite its lack of popularity and the impact on business, the current consultation is not proposing to review the Sunday trading laws such as they affect employees.  In our view, that is a shame; a balance could be struck between those for whom Sunday (or indeed, another day of the week) is a religious day and the needs of a retail business to properly staff its stores on one of the busiest trading days of the week.  Existing discrimination and flexible working laws provide the platform for this and it will be a missed opportunity if the Sunday opt-out is not revisited.