Dismissal for Refusing Sunday Work

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Add a note hereKey points
§  Add a note hereThe Sunday Trading Act 1994 (which came into force on 26 August 1994) gave shop workers in England and Wales the right to opt-out of Sunday work, and the right also not to be dismissed, selected for redundancy, or victimised, for exercising that right. Shop workers employed before 26 August 1994 were also given the right to opt-out of any contractual obligation to work on Sundays. On 3 January 1995, that same right was extended to betting workers under analogous provisions inserted in the Betting, Gaming & Lotteries Act 1963. Since then, the relevant provisions of the 1994 and 1963 Acts have been repealed and have re-emerged in the (consolidating) Employment Rights Act 1996 (sections 36 to 43, 45, 101, 197(2), 232 and 233).
§  Add a note hereFor obvious reasons, the right to refuse to work on Sundays does not apply to opted-in shop and betting workers; that is to say, workers who have entered into an agreement with their employers to do shop work or betting work on Sundays; nor does it apply to shop or betting workers who have been employed specifically to work on Sundays only.
Add a note hereMeaning of 'shop worker'
§  Add a note hereA shop worker is an employee who, under his (or her) contract of employment, is required to do shop work or may be required to do such work. 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. The expression shop includes any premises where any retail trade or business is carried on – including the business of a barber or hair- dresser, the business of hiring goods otherwise than for use in the course of a trade or business, and retail sales by auction. But it does not include restaurants, cafeterias, coffee shops, tea rooms, public houses, bars, or the public dining rooms in hotels where meals, refreshments or intoxicating liquor are sold for consumption on the premises. Nor does it apply to any 'take-away' establishment in which meals or refreshment are prepared to order for immediate consumption off the premises (ibid. section 232).
§  Add a note hereA protected shop worker is one who was employed as a shop worker before 26 August 1994, and is still so employed. The term protected also applies to shop workers recruited on or after that date on contracts of employment that do not and cannot require them to work in their employer's shop on Sundays.
§  Add a note hereAn opted-out shop worker is a shop worker employed on or after 26 August 1994 who has exercised his (or her) legal right to opt-out of a term in his contract of employment requiring him to work on Sundays.
§  Add a note hereAn opted-in shop worker is one who has renounced his (or her) protected or opted-out status and has entered into an agreement with his employer to work on Sundays or on nominated Sundays. An opted-in shop worker who reneges on that agreement can be fairly dismissed for doing so.
Add a note hereMeaning of 'betting worker'
§  Add a note hereA betting worker is an employee who, under his (or her) contract of employment, is either required to do betting work or may be required to do so. Betting work means work for a bookmaker at a track in England or Wales on a day on which the bookmaker acts as such at that track, being work that consists of, or includes, dealing with betting transactions. The expression also encompasses work in a licensed betting office in England or Wales on a day on which that office is open for use for the effecting of betting transactions. The latter expression includes the collection or payment of winnings on a bet and any transaction in which one or more of the parties is acting as a bookmaker (ibid. section 233).
Add a note hereComplaint to an employment tribunal
§  Add a note hereA protected or opted-out shop worker or betting worker, who has been dismissed or selected for redundancy for refusing to work on Sundays (or on a particular Sunday), can complain to an employment tribunal, regardless of his (or her) age or length of service at the time the dismissal occurred (ibid. section 108(3)). If the complaint is upheld, the employer will be ordered either to reinstate or re-engage the shop work and/or pay compensation. An employer who unreasonably refuses to comply with an order for reinstatement or re-engagement in these circumstances will very likely be ordered to pay an additional award of compensation.
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Note 
Add a note hereAn opted-in shop worker or betting worker who has been dismissed or selected for redundancy for refusing or failing to work on Sundays (or on a particular Sunday) can also register a complaint of unfair dismissal if he (or she) believes that, in the particular circumstances, he had been unreasonably or unfairly treated by his employer. However, to pursue such a complaint, he would need to have worked for his employer for a continuous period of one year (and be under normal retiring age) at the effective date of termination of his contract of employment.
§  Add a note hereA complaint of unfair dismissal in the circumstances described above must be presented within three months of the effective date of termination of the shop or betting worker's contract of employment. A tribunal will not normally hear a complaint that has been presented 'out of time' unless satisfied that it was not reasonably practicable for the complainant to have acted sooner.

Comments

Unknown said…
Is this including wholesale trade or is that exempt as its not clear anywhere either way??
September 26, 2014 at 10:25 PM
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