Sunday shop and betting work - Employee's rights

URN No: 06/560

 

Contents

How the provisions work

Introduction

The Sunday Trading Act 1994, which extended Sunday shop opening in England and Wales, gave shop workers new employment rights concerning Sunday working. The Deregulation and Contracting Out Act 1994, which amended the Betting, Gaming and Lotteries Act 1963 to allow on-course and off-course betting on Sundays in England and Wales, gave similar new rights to betting workers. All of these rights are now consolidated into the Employment Rights Act 1996. The Sunday Working (Scotland) Act 2003 amended the 1996 Act to give similar rights to shop and betting workers in Scotland from 6 April 2004.

Shop and betting workers have the right:

  • not to be dismissed for refusing to do shop or betting work on Sundays;
  • not to be selected for redundancy for refusing to do shop or betting work on Sundays;
  • not to suffer any other detriment for refusing to do shop or betting work on Sundays. Detriment is not defined in the legislation but could include, for example, denial of overtime, promotion or training opportunities.

These rights apply irrespective of age or length of service. However, they do not apply to those who are employed to work only on Sundays.

How the provisions work

Who is a "shop worker" and a "betting worker"?

Shop workers: A shop worker is an employee who, under his or her employment contract, is or may be required to do shop work. Shop work means work in or about a shop on a day on which it is open to customers.

Betting workers: A betting worker is an employee who, under his or her employment contract, is or may be required to do betting work. Betting work means work at a track that includes dealing with betting transactions for a bookmaker, or work in a licensed betting office when it is open to customers.

How do workers qualify for these rights?

Some shop and betting workers are automatically "protected" from being required to work Sundays, others need to "opt-out" of Sunday working.

"Protected" shop and betting workers qualify for these rights automatically. They can simply tell their employer that they do not work on Sundays. They can give up their right not to work on Sundays only by giving their employer a signed and dated written "opting-in notice" that says they do want to work on Sundays or that they do not object to working on Sundays. They must then agree with their employer exactly what work on Sundays, or on one particular Sunday, they are agreeing to do.

All other shop and betting workers can "opt-out" of Sunday working by giving their employer three months notice, in writing, that they want to stop working on Sundays.

Who qualifies as an automatically "protected" worker?

  • In England and Wales those employed by the same employer as a shop or betting worker since before the date when the law changed (26 August 1994 for shop work and 3 January 1995 for betting work), including those who, before that date, had agreed to work on Sundays.
  • In England, Wales and Scotland, all shop and betting workers whose contract of employment cannot require them to work on Sundays.

Who needs to serve a three-month notice in order to "opt-out"?

  • In England and Wales, shop and betting workers who, after the date the law changed, entered into an employment contract in which they work on Sundays or can be required to do so. An example would be new recruits who initially agreed to Sunday work, but no longer wish to do so.
  • In Scotland, shop and betting workers who are or may be required under their contracts to work on Sundays, whether they were employed before or after the date the law changed.

How to opt out of Sunday shop or betting work

Shop and betting workers who want to opt-out of Sunday working must give their employer a signed and dated written notice saying that they object to Sunday working. They do not have to give any reason. They must then serve a three month notice period. During this period they still have to do the Sunday work required under their employment contract, if their employer wants them to do it. However, shop or betting workers are entitled not to be dismissed or subjected to any other detriment by their employer during the notice period for giving an opting-out notice. Once the three month notice period has ended, the worker has the right not to do Sunday shop or betting work because he or she is protected as an "opted-out" shop or betting worker.

The right to opt out is a continuing one. Any shop or betting worker who opts in to Sunday working has the right to opt out again.

Complaints and time limits

"Protected" or "opted-out" shop or betting workers have the right not to be dismissed or subjected to a detriment on account of their refusal to work on Sundays, or for giving or proposing to give the employer an opt-out notice.

Workers who consider their rights have been infringed can make a complaint to an employment tribunal. An application form ET 1, or in Scotland, ET 1 (Scot) is included in the explanatory leaflet Making a claim to an Employment Tribunal available free from Jobcentre Plus offices, Citizens Advice Bureaux, from the DTI Publications Orderline on 0845 015 0010, or from the Employment Tribunals Service website. When the employment tribunal office receives the completed application form, it will inform Acas who will contact both parties and try to get them to agree a settlement of the complaint, to avoid them having to go to a tribunal hearing.

The employer or worker may also seek the services of an Acas conciliator before an application has been made to a tribunal. However, it is important to remember that the time limit for applying to an employment tribunal - within three months of the date that the right was infringed - is not extended because of any such discussions. However, from 1 October 2004, with the introduction of statutory dismissal, disciplinary and grievance procedures (see New legislation for resolving disputes in the workplace), the time limit will be extended in specified circumstances connected with those procedures. The tribunal can also consider a complaint made outside the three-month time limit if they believe it was not reasonably practicable for the employee to have made the complaint within it and that it has been made within such further period as they consider reasonable.

If a tribunal upholds a complaint of unfair dismissal or detrimental treatment, it can order the employer to pay the worker compensation. In dismissal cases, if the worker wants his job back and the tribunal considers this practicable and just, it can order the employer to re-employ him.

For more detailed information see:

  • Fair and unfair dismissal: a guide for employers and
  • Individual rights of employees: a guide for employers and employees

New legislation for resolving disputes in the workplace

From 1 October 2004, employers and employees will generally be required to follow a minimum three-stage process to ensure that disputes are discussed at work. The new minimum procedures create a framework for dealing with dismissal, disciplinary action and grievance issues, but are not intended to replace established effective procedures. The three steps consist of 1. a letter outlining the problem; 2. a meeting to discuss the matter and 3. an opportunity to appeal at a further meeting. Employees who have not been able to resolve a grievance through discussion must have completed the first step of the procedure if their case is to be admissible to an employment tribunal. If an employee raises a grievance in writing after the employer has undertaken step 1 of a disciplinary procedure, the matter can be dealt with at the step 2 or 3 meeting. Where the procedure relates to dismissal, the employee is not required to do this. However, if the grievance is raised after step 3 of the dismissal and disciplinary procedure, the full grievance procedure must be followed. Where an employer or employee is found not to have fully complied with these procedures, employment tribunals will, subject to some exceptions, impose financial penalties.

Detailed guidance, including information about the circumstances in which the procedures do not apply or are treated as having been followed, is available on the DTI website. Further help and advice can be found on the Acas website and by contacting their helpline: 08457 47 47 47.

Explanatory statement

Employers must give every shop worker and betting worker who is, or who may be, required by his employment contract to work on Sundays a written statement explaining the right to opt-out. This statement must be given to the worker within two months of the date he or she starts work. If an employer fails to do this, and the worker gives the employer an opt-out notice, then the period of that notice is reduced from three months to one month. This means the worker can stop working Sundays after only one month instead of after the normal three month period.

The prescribed text of the explanatory statement in each case - one version for shop workers, another for betting workers - can be found below. The explanatory statements can be freely reproduced, for example if employers wish to distribute them to their workforce.

Explanatory statement: the prescribed text

STATUTORY RIGHTS IN RELATION TO SUNDAY SHOP WORK

You have become employed as a shop worker and are or can be required under your contract of employment to do the Sunday work your contract provides for.

However, if you wish, you can give a notice, as described in the next paragraph, to your employer and you will then have the right not to work in or about a shop on any Sunday on which the shop is open once three months have passed from the date on which you gave the notice.

Your notice must:

  • be in writing;
  • be signed and dated by you;
  • say that you object to Sunday working.

For three months after you give the notice, your employer can still require you to do all the Sunday work your contract provides for. After the three month period has ended, you have the right to complain to an employment tribunal if, because of your refusal to work on Sundays on which the shop is open, your employer:

  • dismisses you, or
  • does something else detrimental to you, for example, failing to promote you.

Once you have the rights described, you can surrender them only by giving your employer a further notice, signed and dated by you, saying that you wish to work on Sunday or that you do not object to Sunday working and then agreeing with your employer to work on Sundays or on a particular Sunday.

 

Explanatory statement: the prescribed text

STATUTORY RIGHTS IN RELATION TO SUNDAY BETTING WORK

You have become employed under a contract of employment under which you are or can be required to do Sunday betting work, that is to say, work:

  • at a track on a Sunday on which your employer is taking bets at the track, or
  • in a licensed betting office on a Sunday on which it is open for business.

However, if you wish, you can give a notice, as described in the next paragraph, to your employer and you will then have the right not to do Sunday betting work once three months have passed from the date on which you gave the notice.

Your notice must:

  • be in writing;
  • be signed and dated by you;
  • say that you object to doing Sunday betting work.

For three months after you give the notice, your employer can still require you to do all the Sunday betting work your contract provides for. After the three month period has ended, you have the right to complain to an employment tribunal if, because of your refusal to do Sunday betting work, your employer:

  • dismisses you, or
  • does something else detrimental to you, for example, failing to promote you.

Once you have the rights described, you can surrender them only by giving your employer a further notice, signed and dated by you, saying that you wish to do Sunday betting work or that you do not object to doing Sunday betting work and then agreeing with your employer to do such work on Sundays or on a particular Sunday.

 

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