Employment Rights Act 1996, section 101

Shop workers and betting workers who refuse Sunday work

Part X Unfair dismissal

(1)Where 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,

is dismissed, he shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that he 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 in relation to an opted-out shop worker or an opted-out betting worker where the reason (or principal reason) for the dismissal is 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)A shop worker or betting worker who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the shop worker or betting worker gave (or proposed to give) an opting-out notice to the employer.

(4)For the purposes of section 36(2)(b) or 41(1)(b), the appropriate date in relation to this section is the effective date of termination.

Definitions used in section 101 11

employee

(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

Defined in s.230(1) · see it in the full Act
protected

“protected”, in relation to a shop worker, shall be construed in accordance with section 36(1) to (5).

Defined in s.232(8) · see it in the full Act

“protected”, in relation to a betting worker, shall be construed in accordance with section 36(1) to (5).

Defined in s.233(5) · see it in the full Act
shop worker

(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a)a contract of employment, or

(b)any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

Defined in s.230(3) · see it in the full Act

(1) In this Act “shop worker” means an employee who, under his contract of employment, is or may be required to do shop work.

Defined in s.232(1) · see it in the full Act
opted-out

“opted-out”, in relation to a betting worker, shall be construed in accordance with section 41(1) and (2),

Defined in s.233(5) · see it in the full Act

“opted-out”, in relation to a shop worker, shall be construed in accordance with section 41(1) and (2),

Defined in s.232(8) · see it in the full Act
betting worker

(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a)a contract of employment, or

(b)any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

Defined in s.230(3) · see it in the full Act

(1) In this Act “betting worker” means an employee who under his contract of employment is or may be required to do betting work.

Defined in s.233(1) · see it in the full Act
shop work

(2) In this Act “shop work” means work in or about a shop . . . on a day on which the shop is open for the serving of customers.

Defined in s.232(2) · see it in the full Act
betting work

(2) In this Act “betting work” means—

(a)work which consists of or includes dealing with betting transactions at a track in England or Wales and which is carried out for a person who holds a general betting operating licence, a pool betting operating licence or a horse-race pool betting operating licence, and

(b)work on premises in respect of which a betting premises licence has effect at a time when the premises are used for betting transactions.

Defined in s.233(2) · see it in the full Act
notice period

“notice period”, in relation to an opted-out betting worker, has the meaning given by section 41(3),

Defined in s.233(5) · see it in the full Act

(3) In this Act “notice period”, in relation to an opted-out shop worker or an opted-out betting worker, means—

(a)in the case of an opted-out shop worker who does shop work in or about a large shop, the period of one month beginning with the day on which the opting-out notice concerned was given;

(b)in any other case, the period of three months beginning with that day.

Defined in s.41(3) · see it in the full Act

“notice period”, in relation to an opted-out shop worker, has the meaning given by section 41(3),

Defined in s.232(8) · see it in the full Act
opting-out notice

(2) In this Act “opting-out notice” means a notice given under subsection (1) by a shop worker or betting worker to whom this section applies.

Defined in s.40(2) · see it in the full Act

“opting-out notice”, in relation to a shop worker, has the meaning given by section 40(2), and

Defined in s.232(8) · see it in the full Act

“opting-out notice”, in relation to a betting worker, has the meaning given by section 40(2), and

Defined in s.233(5) · see it in the full Act
employer

(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

Defined in s.230(4) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act
the effective date of termination

(1) Subject to the following provisions of this section, in this Part “the effective date of termination”—

(a)in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires,

(b)in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect, and

(c)in relation to an employee who is employed under a limited-term contract which terminates by virtue of the limiting event without being renewed under the same contract, means the date on which the termination takes effect.

Defined in s.97(1) · see it in the full Act

Cases considering section 101 3

Lowri Beck Services Ltd v Brophy

[2019] EWCA Civ 2490 · 12 December 2019Interprets

Section 101(1) is identified as conferring the right to pursue an unfair dismissal complaint in the Employment Tribunal. (see para [10]) Section 101(2) is treated as establishing a three-month primary limit and a two-stage extension test based on reasonable practicability and a reasonable further period. (see paras [10]-[12]) Section 101(2)(a) supplies the primary three-month period running from the effective date of termination. (see paras [10]-[11]) Section 101(2)(b) permits a further period where presentation in the primary period was not reasonably practicable and the claim was then presented within a reasonable period. (see paras [10]-[12])

Copsey v WWB Devon Clays Ltd

[2005] EWCA Civ 932 · 25 July 2005Interprets

A shop or betting worker dismissed principally for refusing Sunday work is automatically unfairly dismissed. Outside that category, refusal to work on Sunday may still make dismissal unfair depending on the circumstances. (see paras [80]–[86])

Ikejiuba v WM Morrison Supermarkets Plc

[2019] UKEAT 0049_19_0907 · 9 July 2019

Section 101(3) required determination of whether giving or proposing to give an opting-out notice was the reason or principal reason for dismissal. The issue was one of fact for the Tribunal, whose finding that refusal of revised hours was the operative reason was upheld. (see Discussion)

What each judgment says about section 101 is in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Extent

  1. E9S. 101, 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