Good night….what do the Working Time Regulations say about night work?

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Posted in:Corporate and Commercial, HR and Employment|July 28, 2014 | Join the mailing list

We live in a fast paced, 24/7 world, where shift work and night working are common place features of working life for many people. It’s long been believed that night and shift workers are more at risk of a range of potential health problems, including heart
conditions and stress related illnesses, and a recent international survey has claimed that shift workers are 9% more likely to have type 2 diabetes (and as much as 35% more likely if they are male).

The Working Time Regulations 1998 include specific provisions relating to “night workers” and it’s important for employers to ensure that they know whether members of their workforce fall within that definition and, if so, what limits and requirements the Working
Time Regulations then impose.

The Regulations are a complicated and sometimes difficult piece of legislation and a brief article such as this can only summarise a few key points for employers to be aware of in relation to night work. However, it’s important for employers to make sure that
they are fully aware of their obligations and it’s often a good idea to take some specialist advice to make sure that you are fully compliant.

Some night workers are exempted from many of the Regulations’ requirements in respect of night work and other night workers may be subject to the Regulations, but with certain relaxations. However, for night workers who do not fall within these exemptions or
relaxations, the Working Time Regulations impose requirements and entitlements in relation to the permissible length of their working time. The Regulations also provide most night workers with entitlements in respect of free health assessments and transfers
from night work to day work.  

The provisions in the Working Time Regulations in relation to the length of a night worker’s working time state that a night worker’s normal working time must not average more than eight hours in each 24 hour period, with this usually being calculated based
on a reference period of 17 weeks. It is irrelevant how many of those working hours are actually worked at night, provided that the worker falls within the definition of a “night worker”, and this means that he or she is someone who regularly works at least
three hours per day during night time. The Regulations allow a degree of flexibility as to what constitutes “night time”, but the general rule is that night time is the period between 11pm and 6am.

If a night worker’s work involves special hazards or heavy physical or mental strain, then the Regulations also state that his or her actual (as opposed to normal) working time during any 24 hour period during which he or she performs night work must not exceed
eight hours.

As already mentioned, night work and shift work have been linked by certain pieces of research to increased risk of certain health problems and the Working Time Regulations also contain entitlements for night workers to free health assessments. The Regulations
state that before a worker is assigned to work which will make him or her a night worker, they must be given the opportunity to undergo such a free health assessment and the Regulations also provide that a night worker must then be given the opportunity to
undergo further free health assessments in future “at regular intervals of whatever duration may be appropriate in his [or her] case”.

The Regulations do not specify how these health assessments should be conducted, but the Government’s guidance on this suggests that a self-assessment questionnaire could be used and then if that questionnaire casts any doubt on the worker’s fitness for night
work, then the worker should then be referred to a qualified health professional.

If a registered medical practitioner advises an employer that one of its workers has health problems which, in the medical practitioner’s opinion, are linked to the worker doing night work, then the worker is entitled to be transferred, if possible, to suitable
work which is to be carried out during such times as mean that he or she will no longer fall within the definition of a “night worker”.

As we said toward the beginning of this article, the Working Time Regulations are not an easy piece of legislation and their complexity is added to by the fact that in order properly to apply them, you need not only to be aware of the Regulations themselves,
but also of the case law which the Courts and Tribunals have developed in applying them.

For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact
Nigel Crebbin of the Berg Employment Team on 0161 833 9211 or email him at Follow us on Twitter:

(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal advice should
be obtained before taking, or refraining from taking, any action as a result of this article.)

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