Nightworkers 





The introductory text of the Working Time Directive (WTD) spells out that long periods of night work can be detrimental to the health of workers and can endanger safety at work. 


Separate rules under the WTRs cover the working hours of nightworkers. “Night time” is from 11am and 6pm, unless the employer and worker have agreed a different time in writing (for example, in the employment contract), in which case it means a period of not less than seven hours including the hours between midnight and 5am (regulation 2(1), WTR). 


A “nightworker” is a worker who normally works at least three hours of daily working time in the night time. Workers may also be nightworkers if a collective agreement states their work is night work.


Employers must take all reasonable steps, taking into account their health and safety duty, to ensure that nightworkers’ normal working hours do not exceed an average of eight hours in each 24 hour period, averaged over a 17-week reference period (regulation 6(1),(2), WTR). This reference period can be extended up to 52 weeks by a collective agreement. Regular overtime is included in the average of eight hours, but not occasional ad hoc overtime. Individual workers cannot opt out of the eight hour limit.


Where a nightworker’s job involves special hazards or heavy physical or mental strain, no averaging of hours is allowed. Instead, the employer must ensure that the worker does not exceed eight hours’ work in any 24-hour period that includes night work (regulation 6(7), WTR).


There are special case exceptions, including where the worker’s activities involve the need for continuity of service or production (regulation 21, WTR). The eight hour limit can also be modified by a workforce agreement. In either case, there must be compensatory rest (regulation 24, WTR). 


Breach of regulation 6 (length of night work) is a criminal offence. Night work obligations under regulation 6, WTR are enforceable by the Health and Safety Executive, not by individual workers. 


Before assigning an adult worker to night work, the employer must offer a free health assessment (regulation 7(1), WTR), unless the worker has previously had an assessment and there is no reason to think that it can no longer be relied on. Free repeat assessments must be offered at regular intervals, such as annually. The assessment must be by a qualified health professional but it can be a questionnaire. If the employer is unsure of the worker’s suitability for night work after reviewing the questionnaire, the worker should be asked to undergo a medical examination. 


The worker’s express consent is needed to disclose the health assessment to the employer unless it states simply that the worker is, or is not, suited to night work (regulation 7(5)(b)). If a medical practitioner advises the employer that the worker is suffering from health problems connected to night work, the employer must transfer the worker, if possible, to a suitable day shift. Unlike the equivalent rules for pregnant women (see below), a nightworker who is transferred to day work for health reasons does not have a statutory right to pay protection (regulation 7(6), WTR). The employer may also need to make reasonable adjustments under the Equality Act 2010 (see Chapter 7). 


Employers must retain records for two years showing compliance with rules on night work hours and health assessments.