The legal side of Sunday working
The issue of Sunday working is important in the hospitality industry, but employers need to consider both financial and religious aspects. Gagandeep Prasad of law firm Charles Russell outlines the legal issues you need to be aware of.
THE PROBLEM
Rail companies attracted media attention last year when their employees refused to work voluntary overtime, including on Sundays, owing to disputes over pay. The issue of Sunday working is an important one across the travel, retail and hospitality sectors for both financial and religious reasons. So where do employers stand?
THE LAW
Although its often common practice, there is no legal right for employees to receive additional pay for working overtime or on Sundays, provided their average hourly pay does not fall below the national minimum wage.
Despite this, an employee can only be forced to work overtime if their contract says so. Therefore, companies that rely on voluntary overtime can run into difficulties and be held to ransom over levels of pay.
Pay is not the only reason for workers trying to get out of working on Sundays. Many Christians claim that they are discriminated against when forced to work on their holy day.
Despite what many think, workers do not have a right to time off for holy days or religious holidays, no matter what religion they are, provided that the employer is not specifically discriminating against them. As long as all workers are treated the same and there is a justifiable business need (economics will suffice) then the employer is likely to have an adequate defence against any claims.
The European Court of Human Rights has broadly taken the view that where an employee is forced to work on a religious holiday, there is no discrimination because they are free to resign and take up another post. English courts have followed this, with some unease, but for the moment at least employers have the upper hand.
This does not mean though that employers can totally disregard the religious convictions of their workers when proposing a shift change obliging employees to start working on a Sunday. The change can be justified provided that there is a justifiable need and provided that other workers are not allowed time off to worship on different days of the week.
EXPERT ADVICE
It is strongly advised that any companies that rely on staff working overtime explicitly enforce this in their contracts. Virgin Trains, for example, has negotiated a system with unions where staff are placed on a mandatory rota for Sunday working. However, it is important to note that unless they voluntarily sign a waiver form, employees cannot be forced to work on average more than 48 hours a week.
If an employer is presented with a religious discrimination claim and they do not put forward any justifiable reason for not accommodating the worker's religious views, an Employment Tribunal is likely to find for the employee. However, the threshold for justification is not high and genuine business need will suffice in the majority of cases.
Additionally, employers would be well advised to keep equal opportunities records of the religious beliefs of their employees, including any special considerations raised, so that they can demonstrate that they have taken these into account for any work pattern changes.
CHECK LIST
- Ensure that as many employees as possible have relevant clauses in their contracts that state overtime can be enforced where necessary.
- Ensure that employees of all religious beliefs are treated equally and ensure that such considerations are taken into account when changing work patterns.
BEWARE!
Where employees work overtime, unless they have voluntarily signed a waiver, they cannot be forced to work more than an average of 48 hours per week.
If Christian employees are given a special dispensation to not work on a Sunday, make sure that employees of other religious beliefs are given equivalent dispensations for their holy days.
Gagandeep Prasad, solicitor, Charles Russell LLP
