Opting out of Sunday working

We all fancy sleeping in at the weekend, but for some employers, there is little time for that as Sunday is another busy working day.

Whether someone works or not on Sunday will depend on what is laid down in their Contract of Employment or written statement of employment particulars.

But can an employee opt out of Sunday working?

There are express Sunday working rights applicable to shop and betting workers.

A shop is described as a ‘premises where any retail trade or business is carried on’ and includes supermarkets, barbers and hairdressers salons and auction houses. It excludes restaurants, pubs, takeaways and theatres. Betting work covers work at a track or at betting shop.

Under these rules, shop workers in England and Wales who begun employment with you prior to 26th August 1994 and betting shop workers who commenced work before 2nd January 1995 will not be required to work on Sundays.

Any shop and betting workers that commenced employment after these dates can decide to opt out of Sunday working by providing three months’ written notice (unless they are only employed to work on Sundays). They should carry on working on Sunday for the entire notice period, but once this period has come to an end, the employee will no longer be required to work on Sundays.

Can you refuse an employee’s decision to opt out?

No. You cannot argue that because you have a real business need for them to work, they must work on Sundays. You also cannot dismiss, select them for redundancy or treat the employee unfairly for their decision not to work on Sundays. This means you cannot refuse to give them a pay rise as a result of the employee deciding to opt out of Sunday working.

Employers are obliged to inform their employees of their rights in relation to Sunday working (i.e. their right to opt out) within two months of commencing employment. A failure to do this will mean that the employee only has to give one month’s notice.

Are the rules on Sunday working going to change? 

Changes to Sunday working were announced in the Enterprise Act 2016 to strengthen existing employee rights, but as of yet, this has not come into force.

Workers in large shops (this is defined as shops with an internal floor area of at least 280m²) only have to give one month of notice rather than three months. The current position remains the same for smaller shops.

Workers can object to working additional hours on Sunday beyond their normal Sunday working hours. Those in larger shops will need to give one month’s notice and those in small shops will need to give three months.

Employers will be required to issue an explanatory statement to employees who may be required to work on Sundays. If the employer fails to do this, the notice period will be substantially slashed – it will be seven days for those in large shops and one month for those in small shops. An Employment Tribunal may also award compensation (two or four weeks of pay).

If you like to explore this further, contact us. Our Employment Law Advisers can provide you with guidance and support.

Director of Legal Services

James Tamm

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