Can you ask staff to work weekends?

can you ask staff to work weekends

IN THIS ARTICLE

It is not uncommon for employers to ask employees to work weekends, including Sundays, especially in the retail and hospitality industries. However, there are certain rules and restrictions that must be taken into account, including those on Sunday working and the ‘working time’ rules.

The following guide for employers looks at working weekend laws in the UK, including what employers can and cannot ask of their staff in relation to weekend-working.

The law on working weekends in the UK

Under UK law, an employee cannot be made to work on weekends unless they have agreed to this with their employer. This means that having to work weekends depends on whether there is any provision requiring weekend-working in an individual’s contract of employment.

If the employee’s contract does not reference any requirement to work at weekends, the employer and employee must agree to a contract change before the employee can be required to work on either a Saturday or Sunday.

An employee is not legally obliged to accept a change that adds weekend-working to their contract terms. A flexibility clause within an individual’s employment contract can be used by the employer to unilaterally vary an employee’s normal working hours, provided this change falls within the scope of any such clause. Otherwise, written agreement would need to be reached with the employee in question.

In contrast, if the employee is contractually required to work weekends, they can be asked to work on either a Saturday and/or Sunday in accordance with the terms of their contract. This contractual obligation may be a regular commitment or trigger an occasional request. Either way, an employee working under such a contract must be ready to work weekends.

If weekend-working has been agreed, the employee will only be entitled to their normal rate of pay, unless agreement has also been reached for an enhanced rate. By way of incentive, many employers will offer their employees time-and-a-half or double time for weekend-working, although this is not a mandatory requirement. An employer is also not legally required to provide an employee time off in lieu of working on either a Saturday or Sunday.

Special weekend working rules for shop and betting workers

Under the Employment Rights Act 1996, there are special rules in place relating to Sunday working for retail and betting shop workers, including workers on race tracks. Under these statutory provisions, staff in England and Wales cannot be compelled to work on a Sunday if:

  • they’re a shop worker employed since 26 August 1994 or earlier
  • they’re a betting shop worker employed since 3 January 1995 or earlier
  • they’re a shop or betting worker who is not contractually required to work Sundays.

If an individual falls within any one of these categories, they will be classed as a protected worker under the 1996 Act, affording them automatic protection from having to work on Sundays if they object to doing so. This means that any contractual provision that contradicts the statutory right of a long-standing shop or betting worker not to work Sundays will be unenforceable. Under the Act, a protected worker can give up this protection, but only by providing their employer with a written ‘opting-in’ notice expressly stating that they wish to work on Sundays, or on a particular Sunday, or that they do not object to Sunday working. Having given an opting-in notice, the individual’s contract of employment shall be treated as varied as is necessary to give effect to the terms of that agreement.

The statutory provisions for Sunday working also provide that any shop and betting worker who is contractually required to work on Sundays, whether or not as a result of previously giving an opting-in notice, may give their employer written notice that they object to Sunday working. This means that any worker required to work Sundays, even if they’re not classed as an automatically protected worker, can provide a signed and dated written notice of objection. This is known as opting-out, where again, any contractual provision that contradicts the statutory right of an opted-out shop or betting worker will be unenforceable.

The Sunday working provisions do not apply to anyone who has been contracted to work only on a Sunday. For all other shop and betting workers required to work Sundays, they can opt out of Sunday working at any time by giving 3 months’ notice, although a worker who decides to opt-out must continue to work on Sundays during this notice period if required to do so.

The employer is under a statutory duty to provide every shop and betting worker who is or may be required by their employment contract to work on Sundays with a written statement explaining the right to opt-out. They must provide this within 2 months of the person starting work. If the employer fails to provide a written statement informing new-starters of their statutory right, and the worker decides to opt-out, the notice period to do so will be reduced from 3 months to 1 month. However, if a worker does decide to opt out, the employer is not under any obligation to offer that person extra work on other days instead.

Asking employees to work weekends

There may be occasions, because of the nature of a business and customer demand, that an employer may need their staff to work at weekends, even when this isn’t normally the case.

An employer can ask an employee to work outside of their normal contractual hours, where employees can agree to work the occasional weekend without necessarily agreeing to a permanent change in their employment contract. A protected shop or betting worker may also be able to agree to work the occasional Sunday without signing an opting-in agreement. Still, where an individual is not contractually required to work weekends, or where a shop or betting worker is afforded statutory protection against Sunday working, they can refuse.

If the employer is looking for more permanent cover for weekend-working, agreement should be reached in writing with the employee. By forcing an employee to work weekends where they are not contractually required to do so could amount to a breach of contract. If agreement cannot be reached, it may be possible to terminate an employee’s contract and re-hire them under revised terms (‘fire and rehire’) — provided they’re not a shop or betting worker — although this can expose employers to legal risks and would generally only be used as a last resort and following professional legal advice.

In the recent decision of Dobson v North Cumbria Integrated Care NHS Foundation Trust (UKEAT/0220/19/LA), the Employment Appeal Tribunal held that the decision to dismiss a community nurse after seeking to re-engage her on new terms requiring her to work weekends was potentially discriminatory because of the employee’s childcare commitments. The matter was then remitted back to the tribunal for determination on the relevant issues, including whether the requirement for ‘all community nurses’ to work at least some weekends put women at a particular disadvantage when compared to men.

A potential risk of unlawful discrimination can also arise in the context of forcing employees with particular religious beliefs to work weekends. For example, a Christian worker may object to working on their Sabbath day, a Sunday, asserting that any requirement to work on that day would indirectly discriminate against them on the basis of their religion.

In these or any other circumstances giving rise to potentially discriminatory or contractual issues, it is advisable the employer to find alternative ways to deal with any demand to work weekends. By rewarding employees for working weekends, such as extra pay or time off in lieu, this can encourage greater uptake. If a lack of available staff is an issue in the context of shop or betting workers, employers could try to ensure they have an appropriate number of Sunday-only workers, as these individuals will not have the right to opt-out. In addition, employers could again consider ways in which they can incentivise staff to work Sundays.

Can an employer discipline an employee for refusing to work weekends?

Where a shop or betting worker is afforded protection under the 1996 Act, they cannot be dismissed, disciplined or treated less favourably if the reason for such treatment is their refusal to work on Sundays. This is because these workers have the right not to be subjected to any detriment at work because of any refusal to work on a Sunday, and any dismissal for this reason will be automatically unfair, regardless of their length of service.

For all other employees, whether or not the employer can take any disciplinary action for any refusal to work weekends will depend on the terms of their employment contract. If the contract provides for weekend-working, the employee is contractually obliged to work weekends, where any failure to do so could be treated as a disciplinary matter. In some cases, provided the employer has followed a fair disciplinary process, it may even be lawful to dismiss an employee for failure to follow a reasonable management instruction.

However, if an employee is refusing to work weekends in circumstances where their contract does not require them to work outside of their normal working hours, it would be unfair to discipline or dismiss them because of this. An employee may even feel forced to resign if compelled to work weekends, exposing the employer to a claim for constructive dismissal.

What are the maximum number of hours an employee can work?

Under the Working Time Regulations 1998, an employee cannot work, on average, more than 48 hours a week, unless they do a job not covered by the law on working hours or they agree in writing to opt out of these provisions. This means that where there is any prospect that working weekends may take an individual close to the legal maximum, a written opt-out agreement would first need to be provided by the employee.

In circumstances where an employer is only asking an employee to work an occasional weekend day, they can ask an employee to work more than 48 hours in a week, provided they reduce the employee’s hours in the following weeks to even out their average weekly hours. This is because the average weekly working hours are calculated by dividing the total hours an employee has worked, including overtime, typically over a 17-week period.

However, where opting out of the working time provisions is required, the employee should not be dismissed or treated unfairly if they decide not to agree to this. An employee can also change their mind about opting out, so long as they give the employer the prescribed notice. The length of the notice period will depend on what has been agreed, but should not be more than 3 months. If the agreement says nothing about it, then the notice period is 7 days.

Weekend working laws FAQs

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Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

Author

Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.

Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.

Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.