Night working – a foreseeable health and safety risk?

What do employers need to know when employing people to work overnight? Marwa Stavraetou, trainee solicitor at Gordon Dadds LLP, takes a look…

There are many issues and potential pitfalls that employers, in numerous industries, must keep in mind when employing persons to work overnight.

In the past couple of decades, there has been a shift in the way that employees work. The Times recently reported that workers who work the night shift often suffer from ill health. Some examples include heart disease, obesity, sleep disorders and in extreme cases cancer.

Due to this, employers must remain vigilant in order to ensure compliance with the law that governs night workers and to minimise potential life-threatening health problems from developing amongst the persons that they employ. First and foremost, employers must offer their night workers a free health assessment (normally a questionnaire) before they commence night work; this must keep taking place on a regular basis after that.

It should also be noted that employees are not under an obligation to accept said health check; regardless employers must offer it and it is generally offered once a year. After having completed the health assessment questionnaire, if the answers are a cause of concern, employers should refer the worker to an appropriate doctor.

Working Time Regulations 

Workers who regularly work at night; including those on regular rotating shifts – but excluding those who work nights occasionally – are protected under the Working Time Regulations 1998 (“WTR”).

By way of reminder, The WTR is the United Kingdom statutory instrument which implements the EU Working Time Directive.

The WTR governs the time that people within the United Kingdom may work. The Regulations apply to all workers (not just employees) and specify the following conditions (which must be carried out and borne in mind by employers):

Minimum rest breaks must be provided to night time workers (this includes daily and weekly rest). Furthermore, the WTR created the right to a minimum period of rest of 20 minutes in any shift lasting over 6 hours.

The WTR also outlines that workers may work no more than 48 hours per week; however it should be noted that this can be opted out of and this often occurs within the individual contract of a worker.

In addition, the WTR grants workers a compulsory right to paid annual leave of at least four weeks. The four-week entitlement includes bank and public holidays. It is interesting to note that the WTR was subsequently amended by The Working Time (Amendment) Regulations 2007 to add a further entitlement of 1.6 weeks annual leave.

WTR and Brexit – what are the effects?

Various Court of Justice of the European Union (“CJEU”) decisions on holiday pay are disliked within the UK business sector. By way of example, the right to keep accruing holiday while on sick leave and the CJEU’s decision that holiday pay should be based on all aspects of remuneration (not just basic pay) have caused high amounts of discontent amongst UK employers.

Fast-forwarding to the post Brexit landscape, the government might choose to amend these laws in order to make them more commercially acceptable to employers. The UK may also chose to remove the cap on weekly working hours under the WTR. However, the government’s standpoint on the protection of night workers under the WTR is less clear.

What is the definition of night work?

Night work is defined as at least three hours of work taking place between the hours of 11PM and 6AM. Furthermore, staff may also be classed as night workers if a collective agreement is in existence (for example a trade union agreement). The aforementioned agreement must state that their work is night work and it must be in writing.

Moreover, the WTR states that over a reference period of 17 weeks, workers cannot be required to work more than an average of eight hours on night work in every 24 hours.

Furthermore, workers must take at least two days off in every fortnight meaning that the average weekly limit for night work is 48 hours per week. It is important to note that there is no opt-out from this limit allowed under the WTR.

Certain exceptions do however exist, examples include where night work involves special hazards, heavy physical work or a mental strain.

In the above cases there is an absolute daily limit which explicitly states that work cannot be continued beyond eight hours in any 24 hours. A risk assessment must be carried out to identify special hazards and work involving mental or physical strain.

For some workers (examples include security guards and caretakers); the WTR restrictions on the length of night work to eight hours do not apply.

Are there any special rules for pregnant workers?

In circumstances where a woman works nights and has a certificate from her doctor (GP or midwife) which demonstrates that it is essential for her health and safety not to work nights, then the employer should suspend the worker from working nights for the period stated in the certificate. Additionally, the employer should offer appropriate and suitable alternative day time work on the same terms and conditions to the suspended worker.

If, however, there is no suitable alternative day work, the worker should be suspended on full pay. In addition, a pregnant woman should not be routinely forced to leave her night shift if there is no medical evidence from a doctor or midwife, which demonstrates that this is necessary.

What about the National Minimum Wage?

The National Minimum wage applies to night workers but there is not a higher night working rate. However, a sleep shift during the night period does count as working hours if the worker is both on call and in the workplace (an example of this being care workers).

An employer may decide to reward their workers for working antisocial hours (common examples include free transport and food or extra pay). A legal right to the aforementioned benefits only arises if the contract between the employer and the employee explicitly says so.

What employers must do to ensure compliance with the law when employing night workers?

Employers must keep records of night workers’ working hours to show they aren’t exceeding the limits outlined in the WTR and these records must be kept for at least 2 years. Furthermore, if an employee does not have to do night work under their contract, their employer will normally need the employee’s agreement in order to effect the change in hours.