Sunday Trading Act 1994: Employment Protection Rights

The Sunday Trading Act 1994 repeals existing restrictions on Sunday trading, and introduces a scheme which regulates the opening hours only of "large" shops. In recognition of the possible impact of this development on shop workers, the Act also provides important new rights against unfair dismissal and victimisation for those who, for whatever reason, may object to working on Sundays.

The Sunday Trading Act (the STA) has now received Royal Assent, and is due to come into force on 26 August 1994. From that "commencement date", the existing regime regulating retail trading on Sundays (contained in Part IV of the Shops Act 1950) will be repealed, and replaced by a scheme which in essence regulates the Sunday opening hours only of "large" shops (see the box below right for a brief summary of the new scheme). In recognition of the potential impact of this change on the working patterns of shop workers, the STA provides important new employment protection rights for those employees who, for whatever reason, may object to working on Sundays.

These rights are contained in Schedule 4 of the Act, which introduces the key concepts of the "protected" and "opted-out" shop worker. Such workers will be protected against unfair dismissal or detrimental treatment short of dismissal if they refuse, or propose to refuse, to work on Sundays. This protection will apply from day one of employment, irrespective of an employee's age, length of service, or hours of work.

Shop workers may, however, voluntarily give up their rights by "opting-in" to Sunday working, but they will always retain the right to opt out again on giving their employer three months' written notice of their objection to such work. On the other hand, there is no protection for those who are applying for retail employment, or those who work only on a Sunday.

Below we consider the detailed provisions of the Schedule.

Note: In addition to the specific interpretation provisions contained in the Schedule, the general interpretation provisions of s.153 of the Employment Protection (Consolidation) Act 1978 (the EP(C)A) apply. Similarly, s.151(1) and (2) and Schedule 13 of the EP(C)A - on calculating continuous employment - apply with certain modifications. In general, any week in which a shop worker's relations with his or her employer "are governed by a contract of employment" will count in determining continuity for present purposes.

Who is a "shop worker"?

A "shop worker" is defined as an employee who, under his or her contract of employment, "is required to do shop work or may be required to do such work" (para. 1 of Schedule 4). An "employee" is an individual who has entered into, or works under, a contract of employment or apprenticeship (s.153 of the EP(C)A). "Shop work" means "work in or about a shop in England or Wales on a day on which the shop is open for the serving of customers". (For the definition of a "shop" for these purposes, see the box at far right.)

It should be noted that to be a "shop worker" it is not necessary actually to serve customers, or to be working in or about the shop at a time when customers are being served. The phrase "work in or about a shop" therefore extends beyond sales assistants and check-out operators, and probably includes: clerical workers doing work related to the shop; managers and supervisors; cleaners; storepersons; shelf-fillers; trolley-stackers; lift attendants; security staff; and those working in shop or staff cafeterias.

It also seems likely that "van drivers based at the store, who deliver goods to customers, would also be included."1 Indeed, it is arguable that a driver who works in or around the shop and who is "partly delivering to customers and partly collecting goods from a cash-and-carry or central warehouse" will be covered. But drivers who are employed solely to make deliveries from wholesalers or warehouses to shops for onward sale will almost certainly fall outside of the definition.

Interestingly, a worker may not have to be directly employed by the retail outlet at which he or she works in order to be a "shop worker". Thus, staff whose contracts require them to work in or about a shop - such as security staff or cleaners - but who are employed by outside contractors could benefit from the protection provided2. Such staff would obviously have to be employees of the outside contractor, since there is no protection for workers who are themselves self-employed independent contractors working under contracts for services.

"Protected" shop workers

An existing shop worker is to be regarded as "protected" under Schedule 4, whatever his or her contractual obligations in respect of Sunday working, if:

  • on the day before the commencement date (that is, 25 August 1994), he or she was employed as a shop worker;

  • on that day, he or she was not employed to work only on a Sunday;

  • he or she has been continuously employed "during the period beginning with that day and ending with the appropriate date"; and

  • throughout that period, "or throughout every part of it during which his or her relations with his or her employer were governed by a contract of employment", he or she was a shop worker (para. 2(1) and (2)).

    A worker will satisfy the first two of these conditions if, on the day before the commencement date, his or her relations with the employer have ceased to be governed by a contract of employment, but that day falls in a week which counts as a period of employment under paras. 9, 10 or 20 of Schedule 13 of the EP(C)A (which preserve continuity during absence from work because of sickness, temporary cessation of work, arrangement or custom, pregnancy and maternity, or absence pending the reinstatement or re-engagement of a dismissed employee).

    The "appropriate date" in relation to a shop worker who is protected under para. 2(2) differs depending on the nature of the question to be determined.

    In addition, any shop worker is "protected" if his or her contract of employment is such that he or she:

  • is not, and may not be, required to work on a Sunday, and

  • could not be required to work on a Sunday even if the provisions of Schedule 4 were disregarded (para. 2(1) and (3)).

    This provision ensures that a new shop worker (that is, one whose employment commences after the Act comes into force) employed under such a contract will enjoy protected status. As the Schedule was originally drafted, a worker in this position would not have been protected as an existing employee, and could not have become an opted-out shop worker (since only those who have some contractual obligation to work on a Sunday can exercise that option - see below).

    "Opted-out" shop workers

    Any shop worker who, under his or her contract of employment, is or may be required to work on a Sunday (whether or not as a result of previously giving an "opting-in" notice - see below), but who is not employed to work only on Sunday, may at any time give his or her employer written notice, signed and dated by the shop worker, "to the effect that the shop worker objects to Sunday working" (the "opting-out notice" - para. 4).

    That notice will normally take effect three months from the day on which it is given, although in exceptional cases the "notice period" is reduced to one month (paras. 6 and 11(2) - see below). During the notice period, the employer can continue to require the opted-out worker to do Sunday work and, if the worker refuses, he or she will lose statutory protection under the Schedule.

    A shop worker is "opted-out" if, and only if:

  • he or she has given his or her employer an "opting-out notice";

  • he or she has been continuously employed during the period beginning with the day on which the notice was given and ending with the "appropriate date"; and

  • throughout that period, or throughout every part of it during which his or her relations with his or her employer were governed by a contract of employment, he or she was a shop worker (para. 5).

    These provisions cover not only new shop workers whose contracts require Sunday working, but also protected shop workers whose contracts have been varied to require Sunday working after they have given their employer an opting-in notice. It also covers those who were at some earlier stage opted-out of Sunday working, but who have subsequently opted-in (again, see below).

    Loss of protection: the "opting-in" notice

    A protected or opted-out shop worker may give up that status (and thus lose the employment protection rights discussed below) by voluntarily opting-in to Sunday working (paras. 3 and 5(5)). In order to opt in, the worker must give his or her employer an "opting-in notice" and, after giving that notice, expressly agree with the employer to do shop work on Sunday, or on a particular Sunday.

    An "opting-in notice" is a written notice, signed and dated by the worker, in which he or she expressly states that he or she "wishes to work on Sunday or that he [or she] does not object to Sunday working".

    Automatically unfair dismissals

    It will be automatically unfair, for the purposes of an unfair dismissal complaint brought under Part V of the EP(C)A, for an employer to:

  • dismiss a protected or opted-out shop worker, or select such a worker for redundancy, if the reason, or principal reason, for dismissal or selection was that the worker refused, or proposed to refuse, to do shop work on Sunday or on a particular Sunday (paras. 7(1) and 8(1)). This provision does not, however, apply where the reason, or principal reason, for dismissal was that an opted-out shop worker refused, or proposed to refuse, to do shop work on any Sunday or Sundays falling before the end of the relevant (normally three-month) notice period for opting-out (paras. 7(2) and 8(2)); or

  • dismiss, or select for redundancy, any shop worker if the reason, or principal reason, for dismissal or selection was that the worker gave, or proposed to give, an opting-out notice to the employer (paras. 7(3) and 8(3)).

    As we noted at the outset, this right will apply irrespective of the age, length of service or hours of work of the shop worker (para. 9). Furthermore, s.142 of the EP(C)A - which allows an employee employed on a fixed-term contract of one year or more to "contract-out" of his or her unfair dismissal rights (see p.12) - does not apply to a dismissal which is rendered unfair by virtue of these provisions.

    Right not to be subjected to a detriment

    Shop workers will also have the right not to be "subjected to any detriment by any act, or any deliberate failure to act", by their employer on the grounds that:

  • (in the case of a protected or opted-out shop worker) the worker refused, or proposed to refuse, to do shop work on Sundays or on a particular Sunday (para. 10(1)). Again, this provision does not apply if the worker is dismissed for refusing, or proposing to refuse, to do Sunday work before the end of the required notice period for opting-out (para. 10(2));

  • the worker gave, or proposed to give, an opting-out notice to the employer (para. 10(3)).

    The wording of the basic protection against being "subjected to any detriment" reflects that in s.22A of the EP(C)A, in relation to detrimental treatment in certain health and safety cases. Indeed, by virtue of para. 16 of the Schedule, the enforcement and procedural provisions relating to such cases (contained in ss.22B and 22C of the EP(C)A) apply (with minor modifications) to the analogous right for shop workers.

    In summary, however:

  • a shop worker will normally have to complain to an industrial tribunal of detrimental treatment on the prohibited grounds within three months, beginning with the act or failure to act complained of;

  • the provisions do not apply where the detriment in question amounts to a dismissal;

  • the burden of proving the ground on which any act, or failure to act, was done falls on the employer; and

  • if a complaint is upheld, the tribunal must make a declaration to that effect and may award compensation.

    Employer's duty to inform employees of rights

    An employer must give any shop worker who enters into a contractual agreement to work on Sundays (and who is not employed only to work on Sunday) after the STA comes into force a written statement setting out the worker's right to opt out. That statement must be given within two months beginning with the date of the relevant agreement, and must be in the form prescribed in para. 11 of the Schedule. This is set out in the box at right. The employer's duty in this respect applies whether the employee is a new shop worker, or a formerly protected or opted-out worker who has opted-in to Sunday working.

    If the employer fails to comply with any of these requirements, and the shop worker subsequently gives the employer an opting-out notice, the opt-out notice period is reduced from three months to one month. In this case, the shop worker therefore has full protection against dismissal or detrimental treatment if they refuse, or propose to refuse, to work on Sunday at that earlier date (para. 11(2)).

    Effect of rights on contract of employment

    A number of provisions in Schedule 4 deal with the effect of shop workers' new employment protection rights on their contracts of employment.

    Under para. 12(1), the contract of employment of a protected worker employed when the Act comes into force is unenforceable to the extent that it requires the worker to work on Sunday, or requires the employer to provide the worker with work on that day. Furthermore, any subsequent agreement to that effect by any protected worker is void (para. 12(2)), unless it is made after the worker has given the employer an "opting-in" notice in the form described above. In this case, the worker's contract of employment "shall be taken to be varied to the extent necessary to give effect to the terms of the agreement" (para. 12(3)).

    Paragraph 13(1)-(3) makes similar provision in relation to the enforceability of workers' contracts which were in force immediately before an opting-out notice was given, and on the validity of subsequent agreements which require Sunday working after the end of the notice period. Taken as a whole, these provisions are intended to "ensure that rights under the contract reflect the scheme of the Schedule and that neither employer nor employee have residual contractual obligations in relation to Sunday shop work".3

    Note: Paragraphs 12(4) and 13(4) provide that, for the purposes of paras. 12(2) and 13(2) respectively, a protected or opted-out worker may be deemed to retain that status during her maternity leave even if her contract of employment ceases to subsist during that period. Provided that she returns to work in circumstances covered by para. 10 of Schedule 13 of the EP(C)A (that is, if qualified, she exercises her right to return to work in her old job at any time up to 29 weeks after childbirth, or she accepts an offer of suitable alternative employment in accordance with s.56A(2) of the EP(C)A), any agreement made whilst on maternity leave to do (or be provided with) Sunday work on her return will be unenforceable.

    No compensation for loss of Sunday work

    The Schedule ensures that employers have no obligation to provide alternative or substitute weekday hours for protected workers who, at the time the Act came into force, were required to work a specified number of hours a week under a contract which required or might require Sunday working. In those circumstances, if the worker has worked on Sundays (whether or not before the commencement date) but has, on or after that date, ceased to do so, the contract will not be regarded as requiring the employer to provide the worker "with shop work on weekdays in excess of the hours normally worked by the shop worker on weekdays before he ceased to do shop work on Sunday" (para. 14).

    In addition, where a protected worker:

  • could have been contractually required to do Sunday work before the commencement date;

  • has undertaken such work (whether before or after the commencement date), but has, on or after the commencement date, ceased to do so;

  • and it is not apparent from the contract what part of the worker's remuneration, or any other benefit accruing, was intended to be attributable to Sunday work;

    the employer can make a proportionate reduction in the remuneration paid, or the extent of other benefits provided, to reflect the fact that the worker has ceased to work on Sunday (para. 15).

    Miscellaneous issues

    Conciliation and compromise agreements

    As a general principle, any agreement which purports to exclude or limit a shop worker's rights under the Schedule, or preclude the presentation of a complaint to an industrial tribunal, is void. An agreement to refrain from presenting or continuing with a complaint will, however, be valid where an ACAS conciliation officer has taken action under s.133 (in a case of detrimental treatment) or 134 (in a case of unfair dismissal) of the EP(C)A, or the conditions regulating "compromise agreements" (set out in s.140(3) of the EP(C)A) have been satisfied.

    Dismissals procedure agreements inapplicable

    The right to complain of unfair dismissal for any of the reasons prohibited by Schedule 4 of the STA cannot be displaced by the provisions of a dismissals procedure agreement designated by the Secretary of State under s.65 of the EP(C)A.

    Assertion of statutory rights

    The provisions of Schedule 4 of the STA are added to the list of "relevant" statutory rights protected under s.60A of the EP(C)A. That provision makes it automatically unfair to dismiss an employee because he or she has brought industrial tribunal proceedings against his or her employer, or alleged that the employer has infringed a relevant statutory right. It is irrelevant whether or not the employee actually has the right, or whether it has been infringed, although the claim both to the right and that it has been infringed must be made in good faith.

    Related matters

    Deregulation and the protection of betting workers

    The Deregulation and Contracting Out Bill which is currently going through Parliament proposes to amend the Betting, Gaming and Lotteries Act 1963 to allow betting on Sundays. In order to protect "betting workers" (working either for a bookmaker or tote operator at a race track, or at a licensed betting office) who may object to Sunday working, a scheme of employment protection would be enacted which is closely modelled on the provisions of the STA.

    General unfair dismissal rights

    In general, employees can only fall back on their common law rights under their contracts of employment, and/or (if qualified) their general statutory unfair dismissal rights, if they are subjected to pressure to work on Sundays.

    For example, an industrial tribunal recently held that a systems engineer who objected to Sunday working on religious grounds had been unfairly dismissed when he refused to sign a new contract which could require him to work on that day4. The tribunal considered that, in the particular circumstances of the case, dismissal was outside the band of reasonable options open to the employer under s.57(3) of the EP(C)A: "A reasonable employer, recognising the applicant's genuine objections and taking into account its own resources and business needs could have agreed to exclude the requirement to work on Sundays in the applicant's contract subject to review as the new arrangement progressed."

    The need, however, for the ordinary employee to have at least the required two years' continuity of employment in order to bring such a complaint has been underlined in Stedman v Hogg Robinson Travel5. In that case, the EAT refused to accept that the qualification period should be disapplied as contrary to EC law. It was, it said, unable to find "any recognition of a right not to work on Sunday, either as a Community right or as a fundamental right relevant to the interpretation of Community rights, accorded on grounds of privacy and family life or freedom of religion or rights of workers to days of rest".

    Religious discrimination in Northern Ireland

    Requiring an employee to work on a Sunday may amount to unlawful direct or indirect discrimination on the grounds of a person's religious belief under the Fair Employment (Northern Ireland) Act 1976. In the recent decision of the Northern Ireland Court of Appeal (NICA) in Kennedy v Gallaher Ltd6, it was accepted that the employer had indirectly discriminated against the applicant by introducing a six-day shift system which required Sunday working. This requirement had a disproportionate impact on persons with the same religious objection to Sunday working as the applicant; the applicant was unable to comply with the requirement because of her genuine religious belief; and that inability to comply was to her detriment.

    However, the NICA upheld the Fair Employment Tribunal's decision that the requirement to work on Sunday was objectively justified, since its discriminatory effects were outweighed by the reasonable needs of the employer. In this case, particular weight was given to the fact that a ballot of the workforce had produced a majority of over two to one in favour of Sunday working.

    Sunday opening under the Sunday Trading Act: a summary

    Under Schedule 1 of the STA, "large shops" 7 are prohibited from opening on Sunday, unless they have given their local authority 14 days' notice that they propose to open to serve retail customers on that day. (Note, however, that the local authority can agree a shorter notice period.) If the requisite notice has been given, a shop may open for a maximum of six consecutive hours, between 10 am and 6 pm (except when the Sunday is Christmas day or Easter day, in which case the general prohibition applies).

    In addition, a number of shops are specifically excluded from the definition of a large shop, irrespective of their size, and are consequently (in common with all small shops) exempt from any notification requirements or regulation of Sunday opening hours8 under the STA. These include: pubs and off-licences; farm shops; stands at exhibitions; pharmacies; shops at railway stations, motorway service areas and petrol filling stations; motor or cycle supply and accessory shops; shops at designated airports; and shops servicing ocean-going ships. There is also an exemption for persons of the Jewish religion who occupy large shops, and who give their local authority a signed notice that they intend to close the shop on the Jewish sabbath (that is, Saturday).

    What is a shop?9

  • A "shop" includes "any premises where any retail trade or business is carried on".

  • The term "retail trade or business" includes barbers and hairdressers; hiring out goods otherwise than for use in the course of trade or business; and retail sales by auction.

  • It does not, however, include "catering business or the sale at theatres and places of amusement of programmes, catalogues and similar items". A "catering business" means the sale of meals, refreshments or intoxicating liquor for consumption on the premises on which they are sold, or the sale of meals or refreshments prepared to order for immediate consumption off the premises. Such activities are excluded whether they constitute the primary use of the premises, or are merely subsidiary to the main use (for example, the sale of drinks or refreshments during intervals at theatres or cinemas).

  • Furthermore, where premises are used mainly for purposes other than those of retail trade or business and would not, apart from these provisions, be regarded as a shop, only that part of the premises which is used wholly or mainly for the purpose of retail trade or business, or is used for the purposes both of retail trade or business and wholesale trade and is used wholly or mainly for those two purposes considered together, is to be regarded as a shop. ("Wholesale trade" is defined as the sale of goods for use or resale in the course of a business or the hiring-out of goods for use in the course of a business.)

    This latter provision was added to the Schedule primarily to preclude the possibility that the whole of a church or museum, for example, might be defined as a shop because of the presence of a gift shop on part of the premises!

    The "appropriate date" for "protected" shop workers (para. 2(4)(a)-(f) of Schedule 4)

  • For the purposes of an unfair dismissal complaint based on paras. 7 and 8 of the Schedule, the appropriate date means the "effective date of termination" (EDT), as defined in s.55(4)-(6) of the EP(C)A. Where a failure to permit a woman to return to work following maternity leave is treated as a dismissal under s.56 of the EP(C)A, the EDT is her notified day of return.

  • For the purposes of a complaint of detrimental treatment under para. 10, the appropriate date is "the date of the act or failure to act". Where the act extends over a period, the date of the act means the first day of the period. A failure to act will be treated as done when it was decided on. In the absence of evidence to the contrary, an employer will be taken to decide on a failure to act when it does an act inconsistent with doing the failed act or, if it has done no such inconsistent act, when the period expires within which it might reasonably have been expected to do the failed act if it was to be done.

  • If the question relates to the enforceability of any agreement entered into by a protected shop worker under para. 12(2), or the variation of a contract of employment by agreement after a protected shop worker has given an opting-in notice (para. 12(3)), the appropriate date is the day on which the agreement is entered into.

  • If the question relates to a woman who is deemed to be protected during her maternity leave under para. 12(4), the appropriate date is the day on which the woman returns to work.

  • In respect of the employer's exemption from providing alternative weekday hours to a protected shop worker whose contract of employment before the commencement date required Sunday working (para. 14), the appropriate date is "any time in relation to which the contract is to be enforced".

  • In respect of the employer's right to make a proportionate reduction in the pay or benefits received by a protected worker who ceases to do Sunday work (para. 15), the appropriate date is "the end of the period in respect of which the remuneration is paid or the benefit accrues".

    Note: The first four of the above categories mirror the definition of the "appropriate date" for the purposes of an "opted-out" shop worker. But for the references to para. 12(2), (3) and (4) respectively, read para. 13(2), (3) and (4) (see para. 5(2)(a)-(d)).

    Prescribed form of statement to be given by employers (para. 11(4) of Schedule 4)

    "Statutory rights in relation to Sunday shop work

    You have become employed as a shop worker and are or can be required under your contract of employment to do the Sunday work your contract provides for.

    However, if you wish, you can give a notice, as described in the next paragraph, to your employer and you will then have the right not to work in or about a shop on any Sunday on which the shop is open once three months have passed from the date on which you gave the notice.

    Your notice must -

    be in writing;

    be signed and dated by you;

    say that you object to Sunday working.

    For three months after you give the notice, your employer can still require you to do all the Sunday work your contract provides for. After the three-month period has ended, you have the right to complain to an industrial tribunal if, because of your refusal to work on Sundays on which the shop is open, your employer -

    dismisses you, or

    does something else detrimental to you, for example, failing to promote you.

    Once you have the rights described, you can surrender them only by giving your employer a further notice, signed and dated by you, saying that you wish to work on Sunday or that you do not object to Sunday working and then agreeing with your employer to work on Sundays or on a particular Sunday."

    1 Hansard (HC), 9.2.94, cols. 298-300

    2 Hansard (HL), 5.5.94, col. 1326

    3 Employment Department press release, 5.7.94

    4 Dutton v Hughes Rediffusion Simulation Ltd, Case No. 31931/93

    5 23.5.94 EAT 794/93

    6 Court of Appeal (Northern Ireland) 27.9.93

    7 A "large shop" is defined as one which has a relevant floor area exceeding 280 square metres. The "relevant floor area" refers to the internal floor area of the shop which is used for serving customers in connection with the sale of goods, or for the display of goods.

    8 Part 1 of the Shops Act, which regulates shop opening hours, will no longer apply on a Sunday. The Deregulation and Contracting Out Bill, currently before Parliament, in any case proposes the general repeal of those provisions.

    9 See para. 1(1)-(3) of Schedule 4.