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Consultation on Sunday Trading Rules ADVICE 1. I Have Been Asked to Advise on the Likely Impact of Proposed Chan

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Consultation on Sunday Trading Rules ADVICE 1. I Have Been Asked to Advise on the Likely Impact of Proposed Chan Sunday Trading: Consultation on Sunday trading rules ADVICE 1. I have been asked to advise on the likely impact of proposed changes to Sunday trading laws and in particular the effect in Scotland. It is necessary to consider two separate issues: a. the length of Sunday trading hours b. what rights an employee has not to work on a Sunday. There is different legislation about these two aspects, the first being a trading hours issue and the latter reflecting on employment protection rights. This distinction casts a shadow over the position in Scotland. The present position 2. Section 45 Employment Rights Act 1996 now reflects a very delicate balance which was negotiated between the interested parties in the Sunday Trading Act 1994 and provides certainty that a protected shop worker or betting worker as defined “has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the employee refused (or proposed to refuse) to do shop work, or betting work, on Sunday or on a particular Sunday”. There are complex opt-out rights. These employment protection rights are available in Scotland even though there is no restriction on the actual hours of opening there. Paragraph 1.13 of the Consultation Document makes it clear that the Government is not proposing any changes to this part of the legislation. 1 3. It is significant that this protection extends now (and always has) only to shop and betting shop workers (so that it does not for example cover internet shopping1). There is no protection for those who are in support services e.g. cleaners, canteen staff, lorry drivers, security guards etc. Trading hours are at present limited by reference to the space occupied by the particular store in England and Wales. 4. The opt-out has been widely ineffective in practice. A 2012 survey revealed that 48 per cent of trade union Usdaw’s members already face pressure from their employer to work on Sundays, while 72 per cent suggested they would face further pressure if regulations changed to allow shops to open longer.2 Government Consultation 5. A Government consultation recently ended on whether to deregulate Sunday trading but this only applies in England and Wales. The thrust of the changes envisaged is clear from Paragraph 1.10 of the Consultation Document which states “Extending Sunday trading hours would not only support competition and drive economic growth across the country, it would also contribute to the Government’s goal of reducing regulation over the next Parliament”. Paragraph 1.7 of the Consultation Document somewhat half-heartedly acknowledges that “Sundays are special to some 1 Section 232(2) of the Employment Rights Act 1996 identifies shop work as “work in or about a shop…on a day on which the shop is open for the serving of customers”. Some years ago I successfully defended a claim which had been brought by an employee of an early AA call centre who amongst other things sold AA products. It was held in Malone v AA that this did not constitute shop work. This was only an Employment Tribunal decision so is not of binding authority but I do not believe there is any appellate authority on this point at all. 2 Usdaw, 16 April 2012, see https://www.usdaw.org.uk/About-Us/News/2012/April/Usdaw- members-overwhelmingly-oppose-suspension-of as at 15 September 2015 2 people for religious reasons, and the Government is sensitive to the religious significance of Sunday and values the role that religion and religious communities play in our national life”. Paragraph 1.9 says that “The Government believes that local areas are best placed to determine the right approach to Sunday trading in their locality”. David Cameron told the House of Commons on 21 October 2015 that the Government is going to press on with deregulation. 6. This is likely to mean that the Government will give power to local authorities in England and Wales to decide whether to allow shops in their area to have longer trading on Sundays (and this may proceed by way of amendment to a bill presently navigating Parliament). If this happens local authorities will come under pressure from the stores groups to allow greater opening hours. These commercial interests would have deep pockets to challenge, by judicial review applications, local authorities who are short of money should they not liberalise opening hours in their area. These claims might raise issues that the local authority was unreasonable in not permitting the same hours as a neighbouring authority without good reason. Discrimination on the grounds of religion or belief 7. If there is to be no specific legislative protection in particular areas for employees from working longer hours on Sunday in conflict with their religious beliefs, the prohibition against discrimination on the grounds of religion or belief in the Equality Act 2010 can be used to support a worker’s right not to work on a Sunday. This has however been met with varying degrees of success and is inevitably very complex and expensive litigation for an individual to pursue. It must also be stressed that this 3 protection can only extend to those who can establish a religious or philosophical belief that they should not work on a Sunday. It does not assist a person who for any other reasons wants to keep Sunday special, such as to spend time with family or to participate in charitable or sporting activities. 8. The key case now is Mba v London Borough of Merton [2014] IRLR 145 in which the courts accepted in principle that equality law could be used to protect workers in such circumstances, although the claimant in that case did not succeed on the facts. It is however an instructive case as to why this can only be an indirect and unsatisfactory way of giving support to those who do not wish to work on a Sunday, as was recognised by those involved in the compromise which led to the original Sunday Trading Act. 9. Ms Mba has and had a deep belief that Sunday is a day of worship and not for work. After nearly two years of not being required to work on Sundays the council began to roster her for Sunday working. When she refused she was dismissed. The Court of Appeal held that a. the fact that the refusal to work on Sunday was not a core component of the Christian faith would at least indirectly be a legitimate factor for the employment tribunal to consider; b. the issue of justification which may provide a defence then needs to be addressed which may differ in each case (which is inherently difficult to predict). The Court of Appeal divided 2 – 1 with a strong dissent by Maurice Kay LJ. This is an unsatisfactory and expensive way of protecting freedom not to work on a day of rest as it has to be worked out on a day-to-day basis. 4 10. Further as to justification, the concern must be that with the anticipated deregulation, as longer trading hours on a Sunday become the norm and the same as any other day, it will become even more difficult for employees to succeed, particularly as fewer non-religious staff will want to work if the Sunday pay premium disappears, as is likely. Scotland 11. There are particular issues arising in respect of Scotland. Curiously Scotland has never had general legislation relating to the hours of Sunday trading3 which may be explained by the lesser propensity for shops to open on the day of rest north of the border4. The Sunday Working (Scotland) Act 2003 gave greater protection to workers, to prevent them being compelled to work on a Sunday. Section 1 of that Act amended the Employment Rights Act 1996. Introducing the Private Member’s Bill that became the 2003 Act, the late David Cairns MP pointed out that it was only necessary because those passing the Sunday Trading Act 1994 had “ignored the effect that liberalising the market in England would have in Scotland”.5 The loophole in protection for workers in Scotland was brought to light by Argos dismissing eleven employees in Scotland who refused to work on Sundays. Workers in England had an opt-out, whereas those in Scotland did not. If the law is amended in England, it is almost 3 The opt-out provisions do apply in Scotland: see s.244(1) Employment Rights Act 1996 as amended by the Sunday Working (Scotland) Act 2003. 4 Until 1994 barbers and hairdressers in Scotland were prohibited by s.67 of the Shops Act 1950 from carrying out their business on a Sunday. Until 2009 alcohol could not be sold until 12:30pm. This has now changed to 10am, the same as every other day of the week. In the Western Isles, where the Free Church of Scotland has a considerable following, there has been virtually no commercial activity on Sundays until 6:45am on Monday. 5 House of Commons, Hansard, 7 February 2003, col. 541 5 inevitable that it will again have a knock-on effect on employment protections with regard to Scotland. 12. One concern for those employed in Scotland would be that discrimination precedents will be set in England which will affect Great Britain as a whole. 13. These unintended consequences require a little further explanation. The legislative competence of the Scottish Parliament is set out in section 29 of the Scotland Act 1998, so that it can pass laws provided that they do not legislate on reserved matters or incompatibly with the European Convention on Human Rights or EU law.
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