Background:

The claimant worked for the respondent as a customer services assistant from October 2003 until she resigned in September 2021.   As a shop worker she had the right to opt out of Sunday working.

The claimant became a local Trade Union representative in 2010.  She came into possession of guidance in 2012 from HR to Line Managers.  This related to guidance providing three contracts depending on Sunday opt-out.  They were without the opt-out, with an opt-out and reduction in hours or with the opt-out with a redistribution of hours across the other days.   The claimant gave notice of her right to opt out of Sunday working in January 2016.  This was shortly before there were new guidelines coming into effect.  The claimant asserted that she had a meeting with her manager where it was agreed that she could work her hours over the remaining 6 days.  This was not documented and there was nothing in writing before the Tribunal.  The claimant also cited the 2012 guidance in support of that position but the Tribunal noted that the letter was to be sent to the employee and that was never done here.

For about 18 months the claimant had her hours distributed over the 6 days.  There was a review carried out in which the claimant’s store was placed into Group B citing some difficulties with having staffing covered on Sunday, especially in the context of deliveries. From 2018 onwards, there was a rota including all 7 days for the claimant yet she was under no requirement to work a Sunday shift she was rostered for but she would not be paid for those hours if she did not do them.  This money saved would then be diverted to fund staff covering the Sunday shift. The claimant lodged a grievance after receiving her pay which was for 24 hours rather than her full 30 hours (due to the missed Sunday).   This issue continued until a restricting process changing the hours which those roles received. Another grievance was issued which was rejected. The claimant then resigned and claimed for constructive unfair dismissal.

Outcome:

The Tribunal found the decision to reject the grievance, whilst damaging to trust and confidence, did not amount to a breach of the implied term of trust and confidence.   It was found there was a reasonable and proper cause for reaching the conclusions that had been reached.  The claimant did raise points about her decision to opt-out.  It was not enough that there were references to opt-out throughout the process but it had to be shown that there was an infringement of the statutory right.  Accordingly, it was found that there had been no infringement of the statutory right and no breach of the implied term of trust and confidence meaning that the case was dismissed.

Practical Guidance for Employers:

An interesting case about the Sunday opt-out for retail workers.  The actual effect of this could be terribly detrimental if a majority of the employees were to opt-out.  This meant, in this situation, the employer had to take action and meant the hours would still be split across the seven days yet with the opt out the employee would only be paid for those hours undertaken.  This led to a complex case here but one in which there was no breach of the contract allowing for unfair dismissal.

The full case can be viewed here: 
https://assets.publishing.service.gov.uk/media/65bbb51e4965c50010e8a3c4/Mrs_C_Mason_v_Wilko_Limited_2603125.2020.pdf