Retales™ - Never on a Sunday?

Working on a Sunday is not as contentious as it once was. However, Sunday working has recently been under the spotlight following two key developments:

• new Sunday trading rules during the forthcoming 2012 Olympic and Paralympic Games; and
  
  
• an Employment Tribunal decision confirming that it was unlawful for a retailer to reduce premium Sunday pay rates for staff.
  
  

New Sunday trading rules during the Games

The Government announced earlier this year that it would relax Sunday trading rules during the 2012 Olympic and Paralympic Games, on the basis that they "represent a unique opportunity for UK business".

The Sunday Trading (London Olympic Games and Paralympic Games) Act 2012 (the 2012 Act), which came into force this month, suspends the restrictions on large shops' Sunday trading hours during the 2012 Olympic and Paralympic Games for eight weeks, from Sunday 22 July to Sunday 9 September 2012.

Most shop workers have special protection related to working on Sundays. For example, shop workers are already entitled, in certain circumstances, to object to Sunday working. The 2012 Act temporarily reduces the required notice period for opting out of Sunday working. The Department for Business, Innovation and Skills has also produced guidance on the effect of the 2012 Act on the existing right of shop workers to opt out of Sunday working. This provides guidance for both workers and employers.

Reducing Sunday pay rates

In the current economic climate, many retailers are considering various ways to cut costs. Reducing premium Sunday pay rates, where applicable, may appear to be an obvious solution. However, there are risks attached to implementing such changes. This was highlighted in the recent Boots case, in which a move by the retailer to reduce Sunday pay from double time to time-and-a-half for some of its staff was held to be unlawful by an employment tribunal.

Changing terms of employment often gives rise to a number of challenges. Employers may consider that certain terms are discretionary and can be changed without the employees' express consent. However, depending on the circumstances, it is possible that such terms have become implied terms of the contract of employment, for example, through custom and practice. Whilst employers may also have reserved the right to change certain terms of employment, this may be interpreted narrowly by an employment tribunal.

Implementing a binding change to terms of employment therefore requires careful planning. There are a number of issues that retailers should consider before rolling out changes, including timing, phasing in the relevant changes and offering incentives to encourage employees to accept the changes. Considering these issues at the outset should help ensure the proposed changes are agreed and also minimise the risk of litigation.

For further advice on Sunday working issues, please contact Nick Thorpe, Partner (Employment and Pensions Group).