Can an employer offer shop or betting work to only those individuals who have no objection to working on Sundays?
Shop or betting workers who have opted out of Sunday working, or who have protected status, have the right not to be subjected to a detriment or dismissed on the ground that they refused, or proposed to refuse, to work on a Sunday. In addition, shop and betting workers have the right not to be subjected to a detriment or dismissed on the ground that they gave, or proposed to give, the employer an opting-out notice. However, this protection does not extend to prospective employees.
A candidate who is rejected for a position as a shop or betting worker because they object to Sunday working could bring an indirect discrimination claim, depending on the reason for the objection. For example, if a candidate objects to working on Sundays for religious reasons, depending on the circumstances, they may have a claim for indirect religion or belief discrimination. A requirement to work on Sundays may indirectly discriminate against female candidates, because women are more likely than men to be single parents with childcare responsibilities.
The employer may be able to justify a requirement for all employees to be willing to work on Sundays. Having employees available to work on Sundays is likely to be a legitimate aim; the employer would have to show that it had acted proportionately by trying to accommodate candidates' objections to working Sundays, for example by considering alternative shift patterns.