Trading on Easter Sunday
Easter Sunday is not a public holiday, yet most businesses used to have to be closed on this particular day. However, changes to the Shop Trading Hours Act 1990 (the “Act”) that came into effect in August 2016 mean that all territorial authorities (city and district councils) now have the power to have a local Easter Sunday shop trading policy to permit shops to open on Easter Sunday in areas comprising the whole or part(s) of an authority’s district. At least 25 of the 67 local councils in the country have already passed bylaws allowing shops to open on Easter Sunday.
The changes to the Act stipulate that employers who plan to open on Easter Sunday must notify their employees of their right to refuse to work on Easter Sunday (“Notice”). The Notice itself may be in the form of a letter or memo delivered in person, or by email or via group email or in a way that is specified in the employment agreement (“Agreement”). Notice must be provided to the employee between four and eight weeks in advance of the relevant Easter Sunday. The employer is required to repeat this practise each year they would like an employee to work on Easter Sunday.
In the event an employee has commenced employment within four weeks of the relevant Easter Sunday, the employer is required to give this employee Notice as close to the start date of their employment as possible.
Please note that the process described above cannot simply be written into an Agreement. New legislation makes any provision in an Agreement which requires an employee to work or be available to accept work on Easter Sunday, unenforceable.
If a business is prohibited from operating on Easter Sunday (due to the relevant territorial authority not having a local policy or the business falling outside the existing exemption categories) but they would still like their employees to work on Easter Sunday, for instance, to stack shelves or do a stock take, they are still required to follow the practice of written notification as would have been done if the business had been open to the public for the day.
Employees who have received Notice and intend to exercise their right to refuse to work are required to inform their employer by a notice in writing within 14 days of the date they received the Notice. This can be by letter or email or in a way specified in their Agreement.
Where an employee has started work within 14 days prior to the relevant Easter Sunday and has received Notice and wants to refuse to work, that employee must give the employer their notice as soon as possible after receiving the Notice from the employer.
If the employee does not follow these notice requirements, and their Agreement has a clause stating that they can be required to work on Easter Sunday, the employer can require them to work.
If the employer does not follow the notice requirements and requires an employee to work on Easter Sunday, their actions are likely to be viewed as compulsion and would expose them to a personal grievance claim by the employee.
Scenarios where the employer would be likely to be deemed to have compelled an employee to work include instances where:
They have added working on an Easter Sunday as a condition of the continuing employment of an employee;
They have unfairly influenced the shop employee to try to convince them to work on an Easter Sunday; or
They have required an employee to work on Easter Sunday without giving them the correct Notice as prescribed by the Act.
Employers are barred from treating their employees adversely for exercising their right to refuse to work. Examples of treating an employee adversely may be not offering an employee the same working conditions compared with another employee in similar circumstances, or dismissing or retiring an employee.
If an employee thinks that they have been treated adversely by the employer because they refused to work on Easter Sunday, they can raise a personal grievance claim against them.
If you are an employer and need guidance on the Easter Trading laws, we recommend you seek advice from a lawyer.