Claimant v Wilko Retail Ltd — 2022

The tribunal held that the claimant's contract continued to permit the respondent to roster her for Sunday work even after she had opted out of Sunday working. The effect of the statutory opt-out was that Sunday working obligations became unenforceable against the claimant, not that her contract was varied so as to exclude Sundays or require her contractual hours to be redistributed across the rest of the week.

The tribunal also found that the respondent's remuneration policies were incorporated into the contracts of employment and that the 2016 collective agreement with GMB was agreed and implemented. Taken together, those materials confirmed that the respondent was not obliged automatically to reschedule Sunday hours, although it was required to redistribute hours where business allowed. On the evidence, the tribunal found that the respondent had redistributed hours where it could, including through overtime, and that unpaid Sunday shifts not worked were not wages properly payable.

On the detriment complaint, the tribunal accepted that the respondent moved to regular Sunday rostering for business reasons connected to a seven-day delivery model and staffing requirements, rather than on the ground that the claimant had exercised the right to opt out. It found that opted-out staff were not treated less favourably in the allocation of overtime and that the claimant had not been subjected to a detriment contrary to s.45 ERA 1996. Both claims were therefore dismissed.