As the world’s most famous night worker, Santa Claus, prepares for his annual shift, it is worth remembering that the UK has 8.7 million night workers who will be working beyond just Christmas Eve (and to less fanfare). This article considers what constitutes "night working" and what employers need to know when employing staff who work during the night.
What is a "night worker"?
According to the Working Time Regulations 1998 ("WTR 1998"), "night workers" are those who work for at least three hours during the "night time" as part of a regular working pattern. "Night time" is defined as the period between 11pm and 6am, though employers can agree to a different definition provided it lasts at least seven hours and includes the hours between midnight and 5am.
Various categories of workers are excluded from the protections afforded to night workers (discussed below), such as those who work for emergency services; as domestic servants in private households; or in aviation or road transport.
How are night workers protected?
Limits on night working
Adult night workers should not work for more than an average of eight hours in each 24-hour period (typically calculated over 17 weeks). However, the rules are stricter if their work involves special hazards or heavy physical or mental strain. In those circumstances, a night worker's actual working time must not exceed eight hours in any 24-hour period in which they perform night work. The rules are stricter still for young workers.
It is not possible for night workers to opt out of these limits. However, employers may make a collective or workforce agreement to modify or exclude them.
Free health assessments for night workers
Employers must offer free health assessments to night workers to determine whether they are fit to perform night work. Such assessments should be offered both prior to the commencement of employment and at regular intervals during it. If a medical practitioner advises that a night worker is suffering from health problems connected to night work, the employer should redeploy them to suitable alternative day work, if possible.
Monitoring and compliance
Employers must take "all reasonable steps" to ensure that the 8-hour average working limit is adhered to.
Employers must also create "adequate" records to evidence that they are complying with both the limits on night working and their obligations to offer free health assessments. The WTR 1998 are not prescriptive as to the form such records should take. For instance, it is not necessary to record each night worker's daily working hours, provided the employer can demonstrate compliance in another way.
Enforcement and penalties
Enforcement of an employer's obligations in relation to night working is generally carried out by the Health and Safety Executive or local authority. Employers who fail to comply may be guilty of a criminal offence and risk being fined.
It is not possible for an individual to bring a claim in an employment tribunal specifically for their employer's failure to comply with its night working obligations. However, depending on the circumstances, there may be related claims that could be pursued. For instance, an employee could bring a claim in an employment tribunal if they were dismissed or subjected to a detriment by their employer because they refused to work in contravention of the night work limits, or because they alleged in good faith that their employer had infringed the night work rules.
What are the risks of night working?
Research into the health and safety effects of night working has shown that, compared to their day-working counterparts, night workers are more susceptible to heart attacks, miscarriages, gastrointestinal and metabolic disorders, and memory loss. Night working can also lead to broken marriages, strained friendships, and feelings of isolation and loneliness.
Further, night working is thought to play a role in sustaining structural inequality in society. It is almost twice as likely to be carried out by ethnic minorities. Women, too, tend to be disproportionally affected, with many performing childcare duties during the day and taking on night work to aid with finances. Night working may also pose particular challenges to those with certain disabilities.
Findings such as these have led campaign groups to call for greater protections for night workers. For instance, The Liminal Space, which helps night workers recover from the physical and psychological toll of night working through its "Night Club" initiative, is calling for the Government to: (i) fund research into the impact of night working; (ii) assign a minister responsible for night workers; (iii) set up an expert task force to inform best practice; and (iv) establish an annual health check of night workers.
Key takeaways for employers
Employers who employ night workers are reminded to:
- Take all reasonable steps to ensure that night workers are not exceeding the 8-hour average working limit. Depending on the circumstances, this may include implementing well-planned rota systems and/or using time-recording systems.
- Keep appropriate records to show that they are complying with their obligations towards night workers. These records must be retained for two years.
- Ensure that night workers are offered free health assessments prior to commencing work and regularly throughout the employment relationship.
- Consider what additional support can be provided to night workers to better support their health and wellbeing. This may include providing free access to sleep-aid apps; nutritional information; or mental health therapists.
- Be mindful that some groups of night workers (e.g. women, ethnic minorities, and those with certain disabilities) may be disproportionately affected by night work. Take steps to ensure that any allocation of night work is fairly distributed among staff.
- Respect workers' rest time and refrain from contacting them unnecessarily during these periods.
For further information on how to manage staff who work at night, or for any other employment-related query, feel free to reach out to a member of our employment team.