The rise of online shopping has changed retail beyond recognition. Consumers expect to be able to buy what they want, when they want, making it harder for high street retailers to compete. The government’s recent proposal to relax Sunday trading rules is one measure that may help the high street.
Retailers with a relevant floor area exceeding 280 square metres are restricted to just six hours of Sunday trading. So any relaxation of this restriction would likely benefit larger shops – most obviously department stores and supermarkets. If the proposed changes are implemented they do not mean an automatic extension of Sunday trading hours. Instead, powers would be devolved (either to local areas or local authorities), meaning that the decisions about Sunday trading would be made locally and influenced by economic, social and cultural factors.
The proposal inevitably divides opinion because whether you are a retailer, a worker or a consumer the impact of the proposed changes varies. For the retailer the benefits are clear. But what can an employer do if its employees object to working Sundays?
When considering varying an employee’s hours the starting point is the employment contract. Any unilateral change would be a breach of contract. However, if the contract states, for example, that the employee will work 35 hours per week with the flexibility to divide those hours over any days then extending someone's hours on a Sunday (and reducing them elsewhere) may not present an issue. On the other hand, if the individual is contracted to work Monday to Saturday only, or only on particular hours on a Sunday, the employer will likely need the employee’s express agreement to vary those terms.
In anticipation of the proposed changes, retail employers should consider updated contracts for new joiners to allow flexibility in relation to Sunday working. For existing employees it’s likely to be premature and disruptive to seek to vary contractual terms at this stage. However, plans could be put in place so that if the trading hours are extended the business is ready for action.
Employees also have the right to opt out of working on Sundays (on three months’ notice) unless it's the only day that they have been employed to work. There is nothing employers can lawfully do to prevent this, but a possible way round it could be to offer incentives for working on Sundays (such as a higher rate of pay) to encourage staff not to opt out. However, employers should think carefully about how they will justify any such incentives and be wary of the risk of an indirect discrimination claim on the grounds of religious belief. For example: if those who are unwilling to work on Sundays assert that they are unreasonably disadvantaged (paid less) as a result.
If Sunday trading hours are extended, inevitably more employees will have to work on Sundays. Employers are also, therefore, likely to receive more requests to opt out and an increase in ad-hoc requests from employees asking not to work on a particular Sunday or not to work longer hours. Employers should give proper consideration to all such requests and adopt a consistent approach – if a request relates to someone’s religious, family or cultural commitments, any perceived less favourable treatment could give rise to a claim under the Equality Act.
Finally and perhaps ironically, some employers may find themselves considering redundancies. The extension of trading hours in a larger shop may have a detrimental knock-on effect on a smaller retailer in the same locality – extra competition may mean the loss of a competitive advantage and, in turn, further pressure on margins.
In practice, if the proposed changes come into force the implications will be significant and varied. Employers should think carefully about the impact on their business, and as their plans develop should consult fully with affected employees at an early stage, in respect of any proposed changes and the impact on their workplace.
Harriet Vaines is an associate and Andrew Yule is a partner at law firm Winckworth Sherwood
