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Ask About... Retail, Fashion & Hospitality

19 December 2016

Many of our clients in the retail, fashion and hospitality sector face similar HR issues. Each month one of the members of our team will identify an issue, ask how you would deal with it and provide our advice. This month we asked Lisa...

Dear Lewis Silkin, 

Can you advise me on an urgent matter? Whilst my elves have been working hard all year, times are particularly tight and I need to find some additional funds so that I can build the last few toys for young boys and girls this Christmas. 

I am thinking of asking parents to buy toys for their children from a special elf toyshop in order to raise this money, instead of providing toys for free like I usually do. If this works well, I would like to open the toyshop every December for the next few years until I make it out of this difficult patch.

I will need elves to work in the toyshop seven days per week during the run-up to Christmas and I’d like to check the current position on Sunday shop-working, as I heard that a new piece of legislation, the Enterprise Act 2016, might change the law in this area. 

Please get back to me as soon as possible.

Kind regards, 

Father Christmas

  1. If your policies comply with the law as it was before the Enterprise Act 2016 came into force, you do not need to worry about the new provisions as they are not retrospective. 

  2. The law in this area changed when the Enterprise Act 2016 received Royal Assent on 4 May 2016. You only need to worry about the new provisions for elves employed on or after this date.

  3. The relevant parts of the Enterprise Act 2016 Act are not yet in force. When the new provisions take effect, you will have two months from the commencement date specified in those provisions in which to issue a new statement to your elves. 

  4. You must ensure that you follow the new provisions under the 2016 Act by 1 January 2017 or risk claims being brought by your elves in the Elf Employment Tribunal.

The answer is C. 

Dear Father Christmas,

Thank you for getting in touch. It is correct that the Enterprise Act 2016 (the ‘2016 Act’) received Royal Assent in May this year and that it contains a number of provisions which would affect the way in which you manage your toyshop elves. But don’t panic, these parts have not yet come into force.

Under the current law, the elves employed as shop workers in your elf toyshop would have the right to opt out of working on Sundays (provided they do not only work on Sundays) and, as an employer, you have an obligation to give them a written statement in a standard form detailing this right. If your elves chose to exercise their opt-out, they would have to give you three months’ notice. This notice period would reduce to one month if you failed to provide the statement. 

When the 2016 Act comes into force there will be a number of changes:

Under the 2016 Act, your toyshop would be considered ‘large’ if it is covers more than 280 square metres. If this is the case, the notice period that your elves would be required to give to opt out of Sunday working will reduce from three months to one month.  If the toyshop is smaller than that, then the notice period will not change.

The 2016 Act also introduces a new right for all shop workers to object to working more than their normal Sunday working hours. You will need to inform the elves of their right to object to working additional hours. 

Elves who wish to object to additional hours would have to give you one month’s notice if your toyshop is ‘large’ and three months’ notice otherwise. 

The form and content of the statement you would have to give the elves in relation to their right to opt out of Sunday working and their right to object to additional hours will be different from the current statement. Once the new statement format has been released, please don’t forget to give your elves the new statement, as failure to do so would mean that the notice your elves must give will be reduced from one month to seven days if you have a large shop, and from three months to one month otherwise. 

As with the current legislation, if you employ some elves to work solely on Sundays, those elves cannot opt out of working on this day.

Whilst I am sure that all elves would love to work in your toyshop and would not need any further incentive, if you are worried, you could consider increasing their remuneration. 

We do not yet know when the 2016 Act will come into force but we will let you know when we have any further updates.

Merry Christmas!

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