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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 Jobcentre
Plus offices, Citizens Advice Bureaux, from the DTI Publications
Orderline on 0870 1502 500, 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.
More
detailed information is available in the documents Unfairly
dismissed? (PL 712), Fair
and unfair dismissal: a guide for employers (PL 714) and Individual
rights of employees: a guide for employers and employees (PL
716).
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
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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.
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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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Last updated 24 June 2005
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