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9-03-2016

BIS published the government's response to the consultation on devolving Sunday trading rules to local areas in February 2016. The government proposes to devolve the power to extend Sunday trading hours in England to local councils and, in London and Manchester, the Mayor.

At present larger shops are limited to six hours’ trading on Sundays. Shop workers may give their employer a signed and dated written notice that they object to Sunday working at any time, provided they:

  • Are or may be required to work on Sunday.
  • Are not employed to work only on Sunday.

The notice takes effect after three months.

The government is proposing to balance the new measures by only requiring shop workers to give one month's notice to large shops that they no longer want to work Sundays and guaranteeing a minimum award where a claim is brought and an employment tribunal finds that the employer failed to notify the shop worker of their opt-out rights.

There is nothing an employer can do to prevent all of its shop workers from opting out of Sunday working. It is not possible to refuse a worker's right to opt out. However, workers employed to work only on Sundays cannot opt out.  So employers can potentially get around issues by employing staff who only work Sundays.

Whilst the opt-out provisions that apply are limited, it may be possible for employees to argue that the requirement for them to work on Sunday amounts to indirect discrimination on the grounds of their religion or belief, but such arguments have not been successful in the past.

In Mba v Mayor and Burgesses of the London Borough of Merton [2013] EWCA Civ 1562, the Claimant argued that she had been discriminated against when Merton Council required her to work Sundays in a care home for children with complex needs.  The Court of Appeal accepted that there was no viable alternative for the Council and so whilst the requirement was potentially discriminatory it was justified in all the circumstances.  She had signed a contract which made it clear Sunday working would be required; the fact that she had had an informal arrangement whereby she did not have to work Sundays for a period of time made little difference because the Council were able to show that it was not viable to allow her to continue that working pattern.

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