Case Law Update: Sunday Opt Out and Unfair Dismissal

Ben McCarthy

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13 Mar 2020

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The Employment Appeal Tribunal (EAT) has ruled that an employee whose job offer was retracted when they refused to work Sunday hours was not automatically unfairly dismissed.

If you want a quick summary of the case and the main takeaway points, you can skip ahead to our Too Long: Didn't Read section here.

Ikejiuba v WM Morrison Supermarkets plc

The law

Shop and betting workers have the right to object to working on a Sunday in certain circumstances. This is due to the Employment Rights Act 1996 (ERA).

Essentially, an employee in this situation can opt-out of Sunday working. There are some conditions to this, however. One is that their contract requires, or may require, them to work Sunday. Two is that Sunday is not the only day they work.

An employee who does wish to opt-out must give their employer three months’ notice.

Dismissing an employee for asserting this right is automatically unfair. Also, they don’t need to have length of service in order to bring a claim for unfair dismissal.

For a claim to be successful, they’ll need to prove that the opt-out is the principle reason for their dismissal.

Background to the case

The claimant in this case accepted a job offer as a pharmacist. They returned signed, contractual documents to confirm this.

His role was to involve a flexible working pattern of 43 hours per week spread over seven days.

A week before he was due to begin his role, he contacted the organisation. He claimed he’d not been aware that he was expected to work on a Sunday. He couldn’t do this due to religious reasons.

On receipt of his concerns, the organisation made a revised offer. They would permit him to avoid working on Sundays if he reduced his hours to 37 per week. The claimant rejected this offer, outlining he was not willing to work on Sundays or to reduce his hours.

In response, the organisation retracted his offer. They cited that they had not been able to agree a ‘suitable alternative’ regarding his hours. As a result, they felt there was ‘no other option’.

The claimant later brought numerous claims to the employment tribunal (ET). The claims included automatic unfair dismissal for asserting a statutory right and breach of contract.

What did the employment tribunal say?

Although the tribunal upheld his claim for breach of contract, they dismissed his claim of automatic unfair dismissal.

In forming their decision, the tribunal considered the evidence presented to them. The claimant had signed and returned the contractual documents upon receiving his original job offer. As a result, the claimant had agreed to work a varied shift pattern which did include Sundays.

When he had later tried to vary his hours, the employer had considered his request and attempted to accommodate it. They’d done this despite being over budget and still in need of finding an additional Sunday worker.

The tribunal held that the claimant’s retracted job offer hadn’t come about because he’d tried to opt out of Sunday working. Instead, it had come about because he’d refused the alternative hours offered.

From what the tribunal could establish, under the terms of his contract he was not in any way prevented from attempting to opt out of Sunday working.

In fact, he would have been allowed to implement this change from day one of employment, or at least at the end of his first rota. This was a significantly shorter time period than the three months’ notice usually required. Furthermore, he would have been able to make a similar request at any time following the commencement of his employment.

He was unable to prove that the opt-out was the principle reason for his dismissal.

He appealed to the EAT on the grounds that the ET had misapplied the law regarding Sunday working. He also stated that the ET’s decision was ‘perverse’.

What did the Employment Appeal Tribunal say?

The EAT dismissed his appeal. They found the tribunal had directed itself correctly about the relevant test. And, they made the correct decision based on the evidence available to them.

They explained that the reason for the claimant’s dismissal was that he’d refused the offer of alternative hours. It was not, as he claimed, because he was opting out of working on a Sunday.

They also agreed that it was perfectly open to the employer to renegotiate the contract on receipt of his opt-out notice. There was no reason why this wouldn’t be the case.

Takeaway points

Unless their contract says so, you’re under no obligation to provide an opted-out employee with alternative work days. Review your contracts, if you’re unsure.

This decision seems to confirm that employers cannot dismiss shop workers for opting out of working on a Sunday. However, there may be grounds for dismissal if the employee is unwilling to accept that working one less day may result in less pay.

Remember that shop workers who do opt-out are protected from being subjected to any form of detriment. Shop workers are also protected from unfair dismissal. So, if you’re faced with a similar situation, approach with caution.

TL;DR

An individual accepted a job offer as a pharmacist. But, a week before he was due to start his role he became aware he was expected to work on a Sunday. He contacted the organisation, stating he couldn’t do this for religious reasons. The organisation revised his offer, permitting him to avoid working Sundays if he reduced his overall working hours. He refused. The company retracted their offer. The individual then brought claims of unfair dismissal and breach of contract to the ET.

The ET dismissed his claim of unfair dismissal but upheld his claim of breach of contract. This was because the employer has considered his request to vary his hours and attempted to accommodate it. Then, they’d retracted his job offer because he’d refused the alternative hours. He was in no way prevented from attempting to opt out of Sunday working. As he was unable to prove that the opt-out was the principle reason for his dismissal, the claim failed.

The EAT dismissed his appeal, finding that the ET’s judgement was sound. This decision confirms that you cannot dismiss shop workers for opting out of working Sundays. But, there may grounds for dismissal if the employee is unwilling to accept that reducing their hours results in less pay. Shop workers are afforded a number of protections, so be cautious when handling a similar situation.

Expert support

Worried how this latest ruling might impact your business? Dealing with a difficult HR situation and not sure where to turn? Speak to a Croner expert today for support and guidance on 01455 858 132.

About the Author

Ben McCarthy works as a content writer for Croner producing commentary and guidance on employment law and key HR developments. Coming from an extensive legal background, Ben regularly constructs key training materials for clients and advisers, and provides daily contributions to national publications.

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