Legal protection for night workers

With the number of those working overnight in the UK on the rise, Homa Wilson provides guidance for employers

Over the past decade, there has been a notable shift away from the traditional working day of 9-5. More people across more industries are working during the night: according to research by the TUC, the number of night workers has risen in the UK by more than 250,000 in the past five years. This is a global trend.  

However, a growing body of research indicates that those who work at night are at greater risk of infection, cancer, heart disease and diabetes. Night work also puts pressure on relationships, which can lead to isolation, and in turn lead to mental health problems. As the health risks associated with night work become more apparent, companies are facing increased pressure to protect workers. The first step is to ensure compliance with the law. 

The Working Time Regulations 1998 (WTR) contain special provisions for night workers, in addition to the protections that apply to all workers, such as the 48-hour maximum weekly limit on working time (which can be opted out of) and minimum rest breaks of 20 minutes in any shift lasting more than six hours.  

A night worker is someone who regularly works for at least three hours between 11pm and 6am. Further, employees may be classed as night workers under the terms of a collective agreement – a contractual agreement between a union and the employer. 

Employers must comply with the following limits:

Night workers must not work more than an average of eight hours in a 24-hour period (an average is usually calculated over 17 weeks). Employers must factor in overtime when working out the average. Overtime is included where it is regularly worked, or is obligatory and guaranteed. It is not possible to opt out of this limit. 

Where night work involves special hazards and mental or physical strain, the WTR impose an actual eight-hour limit in any 24-hour period. The average length of the shift is irrelevant. Work is regarded as involving special hazards if it is identified as such in a collective or workforce agreement or where a risk assessment has identified that the work presents a significant risk to the workers’ health or safety. 

  • Employers must keep records of night workers’ hours to demonstrate that they are not exceeding the limits. The records must be kept for at least two years.
  • A risk assessment must be carried out to identify special hazards and work involving mental and physical strain. 
  • Employers must offer a free health check to any worker who is or intends to be a night worker. The health check must be repeated at regular intervals: good practice is to do this annually. This can be via a questionnaire, and workers are not obliged to undertake the assessment. 
  • Where a GP advises that a worker is suffering from health problems connected with night work, the worker is entitled to be transferred, where possible, to suitable work during the day.
  • Employers must ensure workers over the compulsory school age but under 18 do not work between 10pm and 6am.  

Practical advice for employers 

Use a qualified health professional to devise a health check assessment to determine a worker’s fitness to work at night and identify any risks arising from workplace hazards. An assessment can be online or carried out face-to-face. 

Ensure employees complete the health assessment. Where they refuse, ensure you have written confirmation from the employee that they do not wish to complete the assessment.

The assessment should not just be filed away: you need to consider any concerns arising from it and make a referral to a doctor for further medical assessment where necessary.   

Employers should also consider any matters which may put the worker at an increased risk; for example, where a worker suffers from conditions such as diabetes, insomnia or heart disease. In such cases, rather than use a standard questionnaire or assessment, an assessment should be tailored accordingly. Also consider a referral to a qualified health professional for a further assessment. 

Employers must take all reasonable steps to ensure the eight-hour average is complied with, as failure can lead to a criminal sanction. Keeping good records is essential. Ensure that, where necessary, overtime is being factored in.

With night working on the rise, employers need to be sure they are compiling with strict guidelines to protect their workers. 

Homa Wilson is an employment law partner at London solicitors Hodge Jones & Allen