Source: XpertHR upfront Date: 17-05-2012 Publisher: XpertHR

Outlook video: Temporary change to the rules on opting out of Sunday working


XpertHR's head of content Jo Stubbs and senior employment law editor Clio Springer discuss the temporary change to the rules on opting out of Sunday working over the period of the Olympic and Paralympic Games. 

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The questions in full:

For most employees, whether or not they are required to work on Sundays is going to be down to their contract of employment. But there are special rules for shop and betting workers dating back to when Sunday trading was legalised in the 1990s, aren’t there?

Yes. Basically, some shop and betting workers fall into the category of “protected workers” and cannot be required to work on Sundays either because they have been employed in the same role by the same employer since the law changed or because of the terms of their contract. 

What about shop and betting workers who aren’t protected?

So long as they are not employed to work only on Sundays, shop and betting workers who are, or may be, required to work on Sundays can opt out of Sunday working. They can do this by giving written notice that they object to Sunday working. So long as the employer provided a statement setting out their right to opt out of Sunday working within two months of their becoming such a shop or betting worker (as a new employee or as a previously protected individual who opted in to Sunday working), the opt-out will take effect after three months. If the employer failed to do this, the opt-out becomes effective after one month. 

Although Sunday trading has been permitted since the 1990s, for large shops, ie those with a relevant floor area of over 280 square metres, it is restricted to six hours of trading between the hours of 10am and 6pm. This is where the Government’s temporary change during the Olympics and Paralympics comes in isn’t it?

That’s right. The restrictions on Sunday trading for large shops are being lifted for eight Sundays beginning with Sunday 22 July 2012 and ending with Sunday 9 September 2012. After that period, the normal Sunday trading restrictions will once more apply. 

Presumably many large shops are going to take advantage of the restrictions being lifted to boost sales over this period. Some employees working in these shops are obviously going to want to make the most of being able to work different or extra hours but some won’t. Are they still going to have the right to opt out of Sunday working? 

Yes, this right remains. In fact, because of the short timetable before the Olympics start, the Government has temporarily reduced the notice that shop workers in large shops have to give to opt out of Sunday working. 

How much notice will they need to give? 

A pre-Games period has been specified, beginning on 1 May and ending on 9 July. If a shop worker in a large shop gives notice to opt out of Sunday working in this pre-Games period, the notice will end after two months, or on Saturday 21 July if that is later. This means that the notice period for anyone who gives notice to opt out between 1 May and 22 May will end on 21 July. The opt-out will therefore begin on Sunday 22 July, the first day of the eight-Sunday suspension period. 

So any employees who want to be sure of not having to work on any of the eight Sundays during the suspension have to give their notice by 22 May at the latest. And for employees who give notice between 23 May and 9 July, which is the last day of the pre-Games period, presumably the two-month notice period will end part-way through the eight-Sunday suspension period?

That’s right, so they may be obliged to work on some Sundays during the eight-Sunday suspension period. For example, where someone waits until the last day of the pre-Games period - 9 July - to give the two months’ notice, this won’t end until 8 September, so the first Sunday he or she will have the right not to work will be Sunday 9 September, the last day of the suspension period. 

And what about someone who gives notice after the pre-Games period has ended?

For anyone who gives notice on or after 10 July, the notice period to opt out reverts to being three months. 

And what about where the notice period would normally be one month because the employer hasn’t complied with its obligations to notify the shop worker of the right to opt out of Sunday working?

The one-month notice period will still apply where the employer hasn’t complied with its notification obligations. 

What happens when the suspension period ends? Will a shop worker who has opted out automatically be opted back in to Sunday working?

Ordinarily employees who change their mind about Sunday working would need to give their employer a written opting-in notice, and then expressly agree to work on Sundays or particular Sundays. Under the temporary arrangements, if it is just during the eight-week suspension period that an employee objects to Sunday working, the employee can say this in the opting-out notice. The employee will not then have to give a subsequent opting-in notice to opt back in to Sunday working. However, the employee would still need expressly to agree Sunday working arrangements after the end of the suspension period, and these might not be the same as the employee’s previous arrangements. 

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XpertHR quick reference

Temporary Sunday working opt-out rules during Olympics Where given during a "pre-Games period" running to 9 July, the notice for shop workers employed in large shops to opt out of Sunday working will expire after two months, or on 21 July if this is later. We set out in a table when notice given during this pre-Games period will expire. 

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XpertHR Liveflo

Sunday working: Deal with a shop or betting worker's notice to opt out of Sunday working Use this workflow when you receive notice from a "non-protected" shop or betting worker that he or she wishes to opt out of Sunday working. 

Sunday working: Explain right to object to Sunday working to a non-protected shop or betting worker Use this workflow when a newly recruited shop or betting worker is, or may be, required to work on Sundays, or a previously "protected" or opted-out worker opts in to Sunday working. 

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XpertHR policies and documents

Letter explaining the temporary change to the right of shop workers in large shops to opt out of Sunday working during the Olympic and Paralympic Games Use this model letter to provide a shop worker in a large shop who can be required to work on Sundays with information on the temporary change to his or her rights to opt out of Sunday working as a result of the Olympic and Paralympic Games. 

Model letter explaining shop and betting workers' rights to opt out of Sunday working Use this model letter to provide a shop worker or betting worker who can be required to work on Sundays with information on the right to opt out of Sunday working. This may be a new employee or one who has opted in to Sunday working. 

Letter acknowledging Sunday working opt-out notice from shop or betting worker Use this model letter to acknowledge a Sunday working opt-out notice from a shop or betting worker. 

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XpertHR FAQs

XpertHR answers frequently asked questions on the right of shop and betting workers to opt out of Sunday working:

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More resources on this topic from XpertHR

The questions in full

For most employees, whether or not they are required to work on Sundays is going to be down to their contract of employment. But there are special rules for shop and betting workers dating back to when Sunday trading was legalised in the 1990s, aren’t there?

Yes. Basically, some shop and betting workers fall into the category of “protected workers” and cannot be required to work on Sundays either because they have been employed in the same role by the same employer since the law changed or because of the terms of their contract. 

What about shop and betting workers who aren’t protected?

So long as they are not employed to work only on Sundays, shop and betting workers who are, or may be, required to work on Sundays can opt out of Sunday working. They can do this by giving written notice that they object to Sunday working. So long as the employer provided a statement setting out their right to opt out of Sunday working within two months of their becoming such a shop or betting worker (as a new employee or as a previously protected individual who opted in to Sunday working), the opt-out will take effect after three months. If the employer failed to do this, the opt-out becomes effective after one month. 

Although Sunday trading has been permitted since the 1990s, for large shops, ie those with a relevant floor area of over 280 square metres, it is restricted to six hours of trading between the hours of 10am and 6pm. This is where the Government’s temporary change during the Olympics and Paralympics comes in isn’t it?

That’s right. The restrictions on Sunday trading for large shops are being lifted for eight Sundays beginning with Sunday 22 July 2012 and ending with Sunday 9 September 2012. After that period, the normal Sunday trading restrictions will once more apply. 

Presumably many large shops are going to take advantage of the restrictions being lifted to boost sales over this period. Some employees working in these shops are obviously going to want to make the most of being able to work different or extra hours but some won’t. Are they still going to have the right to opt out of Sunday working? 

Yes, this right remains. In fact, because of the short timetable before the Olympics start, the Government has temporarily reduced the notice that shop workers in large shops have to give to opt out of Sunday working. 

How much notice will they need to give? 

A pre-Games period has been specified, beginning on 1 May and ending on 9 July. If a shop worker in a large shop gives notice to opt out of Sunday working in this pre-Games period, the notice will end after two months, or on Saturday 21 July if that is later. This means that the notice period for anyone who gives notice to opt out between 1 May and 22 May will end on 21 July. The opt-out will therefore begin on Sunday 22 July, the first day of the eight-Sunday suspension period. 

So any employees who want to be sure of not having to work on any of the eight Sundays during the suspension have to give their notice by 22 May at the latest. And for employees who give notice between 23 May and 9 July, which is the last day of the pre-Games period, presumably the two-month notice period will end part-way through the eight-Sunday suspension period?

That’s right, so they may be obliged to work on some Sundays during the eight-Sunday suspension period. For example, where someone waits until the last day of the pre-Games period - 9 July - to give the two months’ notice, this won’t end until 8 September, so the first Sunday he or she will have the right not to work will be Sunday 9 September, the last day of the suspension period. 

And what about someone who gives notice after the pre-Games period has ended?

For anyone who gives notice on or after 10 July, the notice period to opt out reverts to being three months. 

And what about where the notice period would normally be one month because the employer hasn’t complied with its obligations to notify the shop worker of the right to opt out of Sunday working?

The one-month notice period will still apply where the employer hasn’t complied with its notification obligations. 

What happens when the suspension period ends? Will a shop worker who has opted out automatically be opted back in to Sunday working?

Ordinarily employees who change their mind about Sunday working would need to give their employer a written opting-in notice, and then expressly agree to work on Sundays or particular Sundays. Under the temporary arrangements, if it is just during the eight-week suspension period that an employee objects to Sunday working, the employee can say this in the opting-out notice. The employee will not then have to give a subsequent opting-in notice to opt back in to Sunday working. However, the employee would still need expressly to agree Sunday working arrangements after the end of the suspension period, and these might not be the same as the employee’s previous arrangements. 

XpertHR quick reference

Temporary Sunday working opt-out rules during Olympics Where given during a "pre-Games period" running to 9 July, the notice for shop workers employed in large shops to opt out of Sunday working will expire after two months, or on 21 July if this is later. We set out in a table when notice given during this pre-Games period will expire. 

XpertHR Liveflo

Sunday working: Deal with a shop or betting worker's notice to opt out of Sunday working Use this workflow when you receive notice from a "non-protected" shop or betting worker that he or she wishes to opt out of Sunday working. 

Sunday working: Explain right to object to Sunday working to a non-protected shop or betting worker Use this workflow when a newly recruited shop or betting worker is, or may be, required to work on Sundays, or a previously "protected" or opted-out worker opts in to Sunday working. 

XpertHR policies and documents

Letter explaining the temporary change to the right of shop workers in large shops to opt out of Sunday working during the Olympic and Paralympic Games Use this model letter to provide a shop worker in a large shop who can be required to work on Sundays with information on the temporary change to his or her rights to opt out of Sunday working as a result of the Olympic and Paralympic Games. 

Model letter explaining shop and betting workers' rights to opt out of Sunday working Use this model letter to provide a shop worker or betting worker who can be required to work on Sundays with information on the right to opt out of Sunday working. This may be a new employee or one who has opted in to Sunday working. 

Letter acknowledging Sunday working opt-out notice from shop or betting worker Use this model letter to acknowledge a Sunday working opt-out notice from a shop or betting worker. 

XpertHR FAQs

XpertHR answers frequently asked questions on the right of shop and betting workers to opt out of Sunday working:

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