Can a shop worker be forced to work on a Sunday?

The Employment Rights Act 1996 gives protection to Sunday working for shop workers. The rights of a shop worker depend upon whether they are classed as a “protected shop worker” or not.

What are the shop worker’s rights?

All shop workers have the option not to work on Sundays. Shop workers who are classed as “protected shop workers” are, however, protected from being required to work on Sundays. 

Protected and opted-out shop workers have a right not to be discriminated against if they refuse to work on Sundays. If a protected or opted-out shop worker is dismissed or selected for redundancy for that reason the dismissal is treated as being automatically unfair.

What is a “protected shop worker”?

A shop worker is classed as a protected shop worker if: 

• he was employed on 25 August 1994 as a shop worker but not to work only on Sunday and he has been continuously employed since that time and he has been, throughout that period, or throughout every part of it during which his relations with his employer were governed by a contract of employment, a shop worker; 

        or 

• his contract of employment does not in any way require him to work on Sunday.

Can a protected shop worker lose their protection?

A protected shop worker loses his protection as a protected shop worker if he has given his employer an “opting-in notice” on or after 26 August 1994 and after giving the notice, he has expressly agreed to do shop work on Sunday or on a particular Sunday. Where a person carries out work on a day when the shop is not open for the serving of customers such work is not classified as being shop work.

Is a contract of employment which requires a shop worker to work on a Sunday enforceable?

Contracts made on or before 25 August 1994

If the contract of employment was made on or before 25 August 1994, and the shop worker was not required to work only on Sunday, any term requiring the shop worker to do shop work (or any term requiring the employer to provide the shop worker with shop work) on Sunday on or after that date is unenforceable.

Contracts made on or after 26 August 1994

If the contract of employment was made on or after 26 August 1994 and the shop worker is classed as a protected shop worker, any term which requires the shop worker to do shop work (or any term requiring the employer to provide the shop worker with shop work) on Sunday is unenforceable.

Variation of a contract

Once a shop worker has given an opting-in notice, he loses his protected shop worker status and his contract of employment is treated as having been varied.

What is an “opting-in notice”?

An “opting-in notice” is a written notice which has been signed and dated by the shop worker to the effect that he consents to Sunday working.

Can a shop worker opt out?

Where a shop worker is required, by his contract of employment, to work Sunday, and he is not employed to work only on a Sunday, he can at any time give his employer an “opting-out notice”. An “opting-out notice” is a written notice which has been signed and dated by the shop worker to the effect that he objects to Sunday working. 

Once an opting-out notice has been given the shop worker is treated as “opted-out” three months after the opting-out notice was given (“the notice period”).  

Once a shop worker has “opted out” any term in his contract of employment which requires him to do shop work on Sunday (or any term requiring the employer to provide the shop worker with shop work) on Sunday becomes unenforceable. 

Where a shop worker is legally required to work on Sunday and he has not given his employer an “opting-out notice”, his employer must, within 2 months of the worker commencing his employment, give him a written statement in a prescribed form. If the employer fails to do so and the shop worker subsequently gives the employer an “opting-out notice” the “notice period” is reduced from three months to one month.