The Enterprise Act 2016 (the Act) received royal assent on 4 May 2016 and its varied provisions include some significant changes to the protections provided to Sunday shop workers by the Employment Rights Act 1996.
These changes have gone largely unnoticed by the retail sector, as focus had been drawn to the Government's initial proposals to devolve powers over Sunday trading hours to local authorities. When those proposals were defeated in the House of Commons earlier this year, it was assumed that the accompanying changes to Sunday working protections for shop workers would also be removed from the final legislation.
However, the protections have endured the legislative process and will come into force shortly, when further regulations are enacted to activate them and clarify some final points in the legislation.
We set out the changes in detail below, but in summary:
- The existing three month notice period to opt out of Sunday working will be reduced to one month for workers who work in large shops (see below)
- Workers will also be entitled not to work Sunday hours beyond their 'normal Sunday working hours' by giving an objection notice to their employer (one month's notice for workers in large shops and three months for other shop workers)
- Employers must provide workers with an explanatory statement, clarifying their entitlements
- Failure to provide an explanatory statement will have the effect of reducing the applicable notice periods to seven days for workers in large shops and one month for other shop workers
- Any contractual provisions that contradict these rights will be unenforceable and any detriment suffered by workers because they have refused to follow voided contractual provisions or served notice will be unlawful. Any dismissal for these reasons will be automatically unfair.
Current position – opting out of Sunday working
Currently, shop workers may opt out of Sunday working (unless they are employed to work only on Sundays) by serving their employer with an opt-out notice, which will take effect after three months.
Shop workers who started continuous employment prior to 26 August 1994 also have the right not to work on Sundays (unless they are employed to work only on Sundays) but without the need to give notice, unless they have opted in to Sunday working, in which case the three month notice provision applies.
Employers are obliged to provide an explanatory statement to shop workers confirming the right to opt out within two months of them starting work. If the employer does not do so, the notice period for opting out of Sunday working is reduced to one month.
Any detriment suffered by shop workers because they have opted out of Sunday working will be unlawful and any dismissal for this reason will be automatically unfair.
New position – opting out of Sunday working
When the provisions of the Act come into force, a shorter notice period of one month will apply to workers in large shops. Large shops are defined as shops with an internal floor area of 280 square metres or more, although any part of the shop that is not used for serving customers (including selling or displaying goods) does not count towards this area.
Where a large shop operator fails to provide an explanatory statement within two months of the worker starting work (or within two months of the new provisions coming into force, in the case of an existing worker), the notice period for opting out will be reduced to seven days.
The existing three month notice period (one month where no explanatory notice is provided) will apply to workers in other shops.
The existing protections from detriment and dismissal in place for workers who opt out of Sunday working will also remain in place.
New position – objecting to additional Sunday hours
In addition to the revised opt-out regime, shop workers will also be entitled to object to working hours beyond their 'normal Sunday working hours' by giving written notice to their employer (one month for large shop workers and three months for other shop workers), referred to as an 'objection notice' in the Act. Employers will not be able to reject an objection notice.
The Act does not define 'normal Sunday working hours', although it states that future regulations may provide for this to be calculated by reference to a worker's average Sunday working hours over a defined period. The Act also suggests that a worker may need to complete a one year qualifying period before they have the right to serve an objection notice. Both of these provisions will be clarified by future regulations.
Employers are also required to provide an explanatory statement in relation to objection notices. Where an employer fails to provide an explanatory statement within two months of the worker starting work (or within two months of the new provisions coming into force, in the case of an existing worker), the notice period for opting out will be reduced to seven days for workers in large shops and one month in other shops.
Similarly, shop workers who serve objection notices receive the same protections from detriment and dismissal as those who opt out of Sunday working. Once the relevant notice has expired, any contractual provision requiring the shop worker to work additional hours will also become unenforceable.
The changes to Sunday workers' rights are likely to cause a significant administrative headache for some retailers.
The right to object to additional working hours is likely to be particularly problematic, both because of the potential difficulty in ensuring sufficient staff levels on Sundays (particularly where later working hours may apply, such as during the Christmas holidays) and the administrative burden of calculating workers' 'normal Sunday working hours'. Although it is currently unclear how normal Sunday working hours will be calculated, the Act suggests that a rolling calculation period may apply, which may require changes to retailers' HR systems.
No date has yet been given for the new provisions to be brought into force, although retailers should begin considering how they may need to adjust their HR systems and Sunday working arrangements to mitigate the impact of the new protections.