Night workers

The problem

Hotel night porters have complained to their line manager about their hours and their working patterns, saying that their health is suffering. What should the employer do about it?

The law

The Health and Safety at Work Act 1974 requires employers to take all "reasonably practicable" steps to prevent harm to their staff.

The Management of Health and Safety at Work Regulations 1999 (HSWR) require employers to actively carry out a risk assessment of the workplace in order to identify risks to health, and to act accordingly.

The Working Time Regulations 1998 (WTR) provide specific requirements in relation to night workers, defined as any workers whose daily working time includes at least three hours of "night time", either on the majority of days they work or sufficiently often to amount to a "normal course".

"Night time" is a period of at least seven hours that includes the period from midnight to 5am. Unless a workforce agreement specifies otherwise, this means 11pm to 6am.

Night workers must not work more than eight hours per day, averaged over a 17-week period. However, if the night work involves special hazards or heavy physical or mental strain, they must not work more than eight hours in any 24-hour period.

The 17-week period can be extended to 26 weeks where the business is involved in tourism and there are seasonal surges in activity, provided that equivalent rest is provided at a later date. Alternatively, the reference period can be extended to 52 weeks where there is a workforce agreement to that effect.

Night workers are entitled to regular free health assessments.

Employers must keep records for two years to prove they are complying with the WTR, including rules on night workers' hours and health assessments.

Expert advice There is an increasing body of evidence to suggest that night work can be a risk to employees' health, being linked with sleeping problems, digestive disorders, stress and heart disease, to name a few. Employers should, therefore, begin treating night working like any other workplace health risk.

The HSWR require employers to formally assess all risks to health in the workplace, including those caused by working arrangements such as night shifts. Employers also need to consider their other obligations under the WTR.

The first issue under the WTR is a health assessment for night work, which must be free to employees and must be offered at "regular" intervals, such as when they start doing night work and perhaps annually thereafter. Once the health assessment has been offered, however, there is no duty to ensure that employees actually follow the assessment through.

The initial health assessment should be in the form of an employee questionnaire that seeks to identify any employees who have health problems that might tend to be worsened by night work. If such concerns are identified, a medical examination should follow, preferably using an occupational health professional with experience of workplace issues such as night working.

It would also be appropriate for workers to see their own GPs as an alternative, provided that they are prepared to disclose the results to the employer.

If the questionnaire and medical examination confirm one or more health problems that tend to be worsened by night work, employees should be taken off night work, at least for the time being, until further assessment passes them fit to begin again.

Employers should also generally avoid placing new and expectant mothers on night shifts if at all possible, and must take special care to look out for young workers doing night work.

Young workers (aged between 16 and 18) are entitled to "health and capabilities assessments" if they do any work at all between 10pm and 6am. This assessment covers more than the ordinary health assessment, and will include considering the worker's physique, maturity and experience in addition to all the normal factors.

Beware

Failure to conduct a formal health and safety risk assessment may lead to an enforcement notice being served by the Health & Safety Executive. If this is not complied with, sanctions can be applied, including fines and/or imprisonment of individual company directors.

An employer who fails to take reasonable steps to ensure that time limits placed on working time (including night work) by the WTR are not exceeded is also guilty of a criminal offence.

Workers who complain about working time, rest breaks, night work, health assessments and the like are likely to be asserting protected statutory rights. Any employer who dismisses such an employee or subjects them to any other detriment for this reason may be exposed to an unfair dismissal claim.

Check list

• Keep records of the hours that the night porters work.
• Check whether their working hours classify them as night workers under the Working Time Regulations.
• Offer all night workers a free health assessment at regular intervals.
• Move night workers to day work if their health is being affected.
• Reduce the hours of work if they normally work more than eight hours a day on average.

Contacts

Matthew Tom at Tarlo Lyons 020 7405 2000
matthew.tom@tarlolyons.com
Department of Trade & Industry
www.dti.gov.uk/er/work_time_regs/index.htm
Health & Safety Executive
Working Time Limits and Rest Breaks infoline
08701 545500