Employment Rights Act 1996, section 43

Contractual requirements relating to Sunday work : opting-out notices

Part IV Sunday working for shop and betting workers

(1)Where a shop worker or betting worker gives his employer an opting-out notice, the contract of employment under which he was employed immediately before he gave that notice becomes unenforceable to the extent that it—

(a)requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday after the end of the notice period, or

(b)requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday after the end of that period.

(2)Subject to subsection (3), any agreement entered into between an opted-out shop worker, or an opted-out betting worker, and his employer is unenforceable to the extent that it—

(a)requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday after the end of the notice period, or

(b)requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday after the end of that period.

(3)Where, after giving an opting-in notice, an opted-out shop worker or an opted-out betting worker expressly agrees with his employer to do shop work or betting work on Sunday or on a particular Sunday (and so ceases to be opted-out), his contract of employment shall be taken to be varied to the extent necessary to give effect to the terms of the agreement.

F171 (4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)For the purposes of section 41(1)(b), the appropriate date—

(a)F172in relation to subsections (2) and (3) of this section, is the day on which the agreement is entered into, . . .

F171 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Definitions used in section 43 11

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
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
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
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
contract of employment

(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

Defined in s.230(2) · see it in the full Act
employed

and “employed” shall be construed accordingly.

Defined in s.230(5) · 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
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
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
opting-in notice

“opting-in notice”, in relation to a shop worker, has the meaning given by section 36(6),

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

“opting-in notice”, in relation to a betting worker, has the meaning given by section 36(6),

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

(6) In this Act “opting-in notice”, in relation to a shop worker or a betting worker, means written notice, signed and dated by the shop worker or betting worker, in which the shop worker or betting worker expressly states that he wishes to work on Sunday or that he does not object to Sunday working.

Defined in s.36(6) · see it in the full Act

Cases considering section 43 7

Brian Kristensen v Portman Healthcare Limited

[2023] EAT 121 · 25 August 2023

The court treated this provision as making a protected disclosure dependent upon a qualifying disclosure. It considered the public-interest requirement through the qualifying-disclosure provisions. (see paras [15]-[20]) The court applied the requirement that a worker reasonably believe a disclosure is in the public interest and tends to show criminal conduct or breach of a legal obligation. The Tribunal’s factual error required that issue to be redetermined. (see paras [15]-[20]; [30]-[32])

Ikejiuba v WM Morrison Supermarkets Plc

[2019] UKEAT 0049_19_0907 · 9 July 2019

The court applied the consequence of opting out: after the notice period, a contractual Sunday-working requirement would be unenforceable. The provision did not entitle the employee to insist on retaining a 43-hour week without Sunday work. (see Discussion)

Schaathun v Executive & Business Aviation Support Ltd

[2015] UKEAT 227_12_3006 · 30 June 2015

The court held that protected-disclosure status must be determined by the applicable statutory route, rather than by whether the employee directly notified the employer. Employer awareness is relevant to the reason for dismissal. (see paras [88]-[91]; [96]-[99])

2 more judgments, and what each says about section 43, are in the case-law panel in the full Act.

Amendments and notes

4 notes from legislation.gov.uk

Amendments

  1. F170Words in s. 43 heading inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 5 text inserted for certain specified purposes only, see the commentary.
  2. F171S. 43(4)(5)(b) repealed (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 7(a)(c), Sch. 9(2); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11)
  3. F172Word “and” after s. 43(5)(a) repealed (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 7(b), Sch. 9(2); S.I. 1999/2830, art. 2(1)(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11)

Extent

  1. E7S. 43, 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