45 Sunday working for shop and betting workers.E+W+S
(1)An employee who is—
(a)a protected shop worker or an opted-out shop worker, or
(b)a protected betting worker or an opted-out betting worker,
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.
(2)Subsection (1) does not apply to anything done in relation to an opted-out shop worker or an opted-out betting worker on the ground that he refused (or proposed to refuse) to do shop work, or betting work, on any Sunday or Sundays falling before the end of the notice period.
(3)An employee who is a shop worker or a betting worker 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 gave (or proposed to give) an opting-out notice to his employer.
(4)Subsections (1) and (3) do not apply where the detriment in question amounts to dismissal (within the meaning of Part X).
(5)For the purposes of this section a shop worker or betting worker who does not work on Sunday or on a particular Sunday is not to be regarded as having been subjected to any detriment by—
(a)a failure to pay remuneration in respect of shop work, or betting work, on a Sunday which he has not done,
(b)a failure to provide him with any other benefit, where that failure results from the application (in relation to a Sunday on which the employee has not done shop work, or betting work) of a contractual term under which the extent of that benefit varies according to the number of hours worked by the employee or the remuneration of the employee, or
(c)a failure to provide him with any work, remuneration or other benefit which by virtue of section 38 or 39 the employer is not obliged to provide.
(6)Where an employer offers to pay a sum specified in the offer to any one or more employees—
(a)who are protected shop workers or opted-out shop workers or protected betting workers or opted-out betting workers, or
(b)who under their contracts of employment are not obliged to do shop work, or betting work, on Sunday,
if they agree to do shop work, or betting work, on Sunday or on a particular Sunday subsections (7) and (8) apply.
(7)An employee to whom the offer is not made is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure to make the offer to him or to pay him the sum specified in the offer.
(8)An employee who does not accept the offer is not to be regarded for the purposes of this section as having been subjected to any detriment by any failure to pay him the sum specified in the offer.
(9)For the purposes of section 36(2)(b) or 41(1)(b), the appropriate date in relation to this section is the date of the act or failure to act.
(10)For the purposes of subsection (9)—
(a)where an act extends over a period, the “date of the act” means the first day of that period, and
(b)a deliberate failure to act shall be treated as done when it was decided on;
and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.
Extent Information
E1S. 45, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2