5. Night work and shift working

There are additional limits to working time for workers involved with night working under the main Working Time Regulations (WTR) and the RTR road transport regulations. However, workers covered by WTR “special case” exclusions (see page 21) are not covered by the night work limits. Young workers should not ordinarily work at night although there are exceptions to this. There is a right to be transferred from night work under certain circumstances and provision for health assessments.

Night

The main WTR regulations (WTR 2) define “night time” as a period determined by a “relevant agreement” (see page 57) but the duration is taken to be not less than seven hours, including the period between midnight and 5am. Where the period is not defined in a relevant agreement, it is assumed to be between 11pm and 6am. A night worker is someone who:

• as a normal course (i.e. on the majority of days on which s/he works), works at least three hours of her/his daily working time during the night time; or

• is likely, during the night time, to work at least such a proportion of her/his annual working time as may be specified in a collective agreement or workforce agreement.

The Northern Ireland High Court has ruled that a worker who worked 9pm to 7am one week in three was a night worker. Department for Business, Enterprise and Regulatory Reform (BERR) guidelines acknowledge this “one-third” ruling but add that “occasional, or ad-hoc, work at night does not make you a night worker”. However, negotiators may be able to secure agreement that any shift pattern that includes nights counts as night work, focusing on issues like which shift patterns qualify, the reference period, monitoring, what to do about “special hazards” work (e.g. to diminish the risk) and also covering health assessment and transfer issues.

WTR night worker limits don’t apply to mobile workers who are otherwise covered by WTR, offshore work, workers in urbanpassenger transport, rail workers on board trains (as defined, see page 23) and doctors in training. Adequate rest or compensatory rest would apply instead. The limits do not apply to those in domestic service or on unmeasured working time (see page 12).

Under the RTR road transport regulations night time is defined on a narrower basis, being between midnight and 4am for goods vehicles and 1am-5am for passenger vehicles. Employers and workers cannot choose to vary the night time period.

In civil aviation under the CAR regulations there is no “night” definition in the Directive, so industry guidelines (CAP 371) have been adopted (2.00am-4.59am local time). This applies in relation to the right to transfer from night work. For seafarers under the SHWR regulations night time is defined as nine consecutive hours including the period between midnight and 5am local time. Work by under-18s during this period is prohibited.

The FVR fishing regulations and IWR inland waterways regulations follow the WTR night work definition and give the Maritime and Coastguard Agency the power to require information on night workers.

General night work limit

WTR Regulation 6 says that a night worker’s normal hours of work in any applicable reference period must not exceed an average of eight hours for each 24 hours. As a result of an amendment in 2002, Department for Business, Enterprise and Regulatory Reform (BERR) guidelines acknowledge that “normal hours of night work include overtime where it is part of a night worker’s normal hours of work”. A night worker cannot opt out of the night work limit, but the limits can be modified or excluded by a collective or workforce agreement (regular 12-hour working, which some shift workers prefer as it provides more rest days and weekends off, is only possible by agreement).

The standard reference period over which a night workers’ hours are calculated is 17 weeks (WTR 6 (3-4)). This may be successive periods under a “relevant agreement” (WTR 6(3)(a)) but otherwise “any period of 17 weeks” (WTR 6(3)(b)). Regulation 23 allows for both the limit on night workers’ hours and the reference period over which they are calculated to be modified or excluded by a collective or workforce agreement (see page 57).

Most of the parallel regulations don't attempt to limit night work in general (CAR, SHWR, FVR, IWR). RTR does, but differs from WTR in the way that it regulates night work. If night work is performed, working time should not exceed 10 hours over any 24-hour period.

The Department for Transport (DfT) emphasizes that under the RTR regulations the 24-hour period is very important:

“When a mobile worker performs night work on a number of consecutive days, the start time reference point for each consecutive 24 hour period is the time at which the mobile worker started work on the first day. This start time reference point would cease to be used when a mobile worker does not perform any night work during two consecutive 24 hour periods”.

Breaks and periods of availability are not included in this 10-hour limit. The 10-hour limit can be extended by collective or workforce agreement “in relation to particular mobile workers or groups of mobile workers for objective or technical reasons concerning the organisation of work” (RTR9(2)). The regulations add that compensation for night work shall not be given to a mobile worker in any manner which is liable to endanger road safety” (RTR 9(3)).

There is no specific night work limit in the European drivers’ hours rules but DfT guidance on RTR points out that “the amount of working time that can be performed is still restricted by the minimum rest requirements” of those rules (see page 46). Night workers are advised to take a copy of their collective or workforce agreement with them if they plan to exceed the 10-hour night work limit when travelling abroad.

Special hazards night limit

The WTR regulations set an “absolute limit” of eight hours in any 24-hour period during which the night worker performs night work involving “special hazards or heavy physical or mental strain” (WTR6(7)). This limit may be modified or excluded by a collective or workforce agreement. It applies to work that is:

• identified as such in a collective agreement or workforce agreement which takes account of the specific effects and hazards of night work; or

• recognised in a risk assessment made by the employer under Regulation 3 of the Management of Health and Safety at Work Regulations 1992 as “involving a significant risk to the health or safety of workers” employed by him/her.

Public services union UNISON has said:

“The Regulations allow unions and employers to draw up the list of workers who will benefit from this protection. Negotiators should ensure that the list is as comprehensive as possible and covers not only those who are exposed to special hazards but also workers whose work involves heavy physical and mental strain”.

Night work and young workers

Under the main WTR regulations (WTR 6A) an employer shall ensure that no young worker employed by him/her works during the “restricted period”. This means between 10pm and 6am or, where the workers’ contract requires them to work after 10pm, the period between 11pm and 7am (Regulation 2 as amended). However, under WTR 27A, this prohibition might not apply in certain circumstances to a young worker employed:

• in a hospital or similar establishment; or

• in connection with cultural, artistic, sporting or advertising activities.

The circumstances are the same as those in which the daily and weekly working time limits do not apply (work necessary for continuity of services or production, where there is no adult available and there are no adverse effects on education or training). The prohibition may not apply to young workers employed in agriculture, retail trading, postal or newspaper deliveries, a catering business, a hotel, public house, restaurant, bar or similar establishment, or a bakery. In these cases work between 10pm/11pm to midnight and 4am to 6am/7am may be allowed, but there is a prohibition on all work between midnight and 4am.

Where a young worker does work during the restricted period they must be supervised by an adult worker where this is necessary for the young worker’s protection and be allowed an equivalent period of compensatory rest. The night work prohibition for young workers does not apply to domestic service (WTR 19) nor in emergencies (“force majeure”) as described in WTR 27.

The seafarers’ regulations SHWR prohibit night work under the age of 18 unless part of an established training programme.

Health assessments

Under the main WTR regulations an employer must not assign an adult worker to work which means the worker becomes a night worker, unless s/he has ensured that the worker has the opportunity for a free health assessment before taking up the assignment (WTR7). An earlier assessment will count if the employer “has no reason to believe that that assessment is no longer valid”. Thereafter, the employer must ensure that each night worker has the opportunity of a free health assessment “at regular intervals of whatever duration may be appropriate in his case”.

What a health assessment for night work entails and how often they should be carried out, is a matter for negotiation. BERR guidance says it can be made up of a questionnaire and a medical examination, the examination only being necessary “if the employer has doubts about the worker’s fitness for night work”. Employers should get help from a “suitably qualified health professional when devising and assessing the questionnaire”. In many cases “it will be appropriate to do this once a year, though employers can offer a health assessment more than once a year if they feel it is necessary”.

Health assessments were already provided in some sectors now covered by WTR, e.g. offshore and on the railways. The right to health checks for all night workers in road transport is provided by the WTR regulations, even though night work itself is defined differently in the RTR regulations (see page 36). The fishing FVR and inland waterways IWR regulations provide their own entitlement to night worker health assessments, with companies potentially required to provide information to the Maritime and Coastguard Agency.

In civil aviation the CAR regulations entitle all crew members to a free health assessment prior to starting work and at regular intervals while prohibiting wrongful disclosure of this information (Regulation 5). The same applies to seafarers where existing requirements relating to fitness for work were modified (to comply with the European directive) under the separate Merchant Shipping (Medical Examinations) Regulations 2002.

Transfer from night work

Under WTR, Regulation 7 makes provision for the transfer of night workers:

• where a registered medical practitioner has advised that a worker is suffering from health problems which they consider to be connected with the fact that the worker performs night work; and

• where it is possible for the worker to be transferred to non-night work “to which the worker is suited” and “during periods such that the worker will cease to be a night worker”.

There is no absolute protection for workers, other than pregnant women and disabled people, if there is no suitable work to transfer to. This means an employer may be able to dismiss a worker fairly in these circumstances. This is an area where negotiations can improve on the basic provisions, for example by determining what happens if no suitable alternative work is available (it may be appropriate to review the employer’s occupational health policy and policy on rehabilitation). Parallel regulations also provide the right to be transferred, including the fishing regulations (FVR 8) and in civil aviation (CAR 5).

Shift workers

Limits on night work hours must be taken into account when shift working involves an element of night work, if this results in the worker being classed as a night worker, or if it has been agreed that this is the case. WTR defines a shift worker as “any worker whose work schedule is part of shift work”.

Shift work is defined as: “any method of organising work in shifts whereby workers succeed each other at the same workstations according to a certain pattern, including a rotating pattern, and which may be continuous or discontinuous, entailing the need for workers to work at different times over a given period of days or weeks.”

Entitlement to daily and weekly rest periods for shift workers applies as follows, subject to compensatory rest (WTR 22):

• the daily rest period of not less than 11 hours (WTR 10(1)) does not apply to a shift worker when s/he “changes shift and cannot take a daily rest period between the end of one shift and the start of the next one”;

• the uninterrupted weekly rest period of not less than 24 hours does not apply to a shift worker when s/he changes shift and “cannot take a weekly rest period between the end of one shift and the start of the next one”; and

• neither of the above entitlements “apply to workers engaged in activities involving periods of work split up over the day, as may be the case for cleaning staff”.

Good practice guidelines on shift work published by the Health and Safety Executive (HSE) advise employers to limit consecutive work days to a maximum of five to seven days and restrict long shifts, night shifts and early morning shifts to two to three consecutive shifts; allow two nights full sleep when switching from day to night shifts and vice versa; build regular free weekends into the shift schedule; set standards and allow time for communication at shift handovers; and control overtime, shift swapping and on-call duties and discourage workers from taking second jobs (www.hse.gov.uk/humanfactors/shiftwork/goodpractice.htm).