Legal Article - Employment Law

Employer Good Practice

Employers need to consider:

• what is included or excluded from working time;

• How much time each worker spends working. In many cases it will be obvious that workers are unlikely to work more than an average of 48 hours a week. If it is unclear, employers should consider monitoring the worker’s working time closely and will wish to consider how to determine their average working time;

• if a worker is working in excess of 48 hours a week, how to reduce their working time, seek the worker’s agreement to continue to exceed this limit, or see if the flexibility for unmeasured working time applies;

• Enquire whether the worker is working elsewhere and, if they were, adjusting working arrangements accordingly. Employers should consider inserting a clause into the contract of employment that workers should notify the employer if working elsewhere;

• What records should be kept. Existing records maintained for other purposes, such as pay, may be appropriate. Where there is a contract stipulating standard working hours e.g. 9am to 5pm, it may be sufficient to meet the requirements by using management systems to ensure that the specified hours are kept. The employer would need to ensure that their means of monitoring worker’s working time would be adequate to highlight instances of workers working in excess of the standard working hours.

Night Work Limits

Where an employer has night workers they will need to consider:

• what is working time;
• how much working time the night workers normally work;
• for any worker who is normally working in excess of an average of 8 hours a night, how to reduce their working time or see if the flexibility is relevant;
• consider an existing, or conduct a new, risk assessment to see if any worker performs work that poses special hazards;
• Keep adequate records to show that the limits on night work are being complied with.

Health Assessments
Under health and safety law, an employer should already have conducted an assessment of the health and safety risks to which workers are exposed. This entails the identification of hazards in the workplace and an assessment of the extent to which these might harm the worker, followed by appropriate action to control and reduce exposure.

While workplace hazards are unlikely to change with night work, risks arising from them might nonetheless be greater at night, particularly where individuals are suffering from, or susceptible to, certain medical conditions.

It is likely that only a very few workers will be permanently unfit to work at night. There are few, if any, health factors that absolutely rule out night work in every case. However, a number of medical conditions may in some cases be made worse by night work, e.g.

• diabetes, particularly where treatment with insulin injections on a strict timetable is required;

• some heart and circulatory disorders, particularly where factors such as physical stamina are affected;

• stomach or intestinal disorders, such as ulcers, and conditions where the timing of a meal is particularly important;

• medical conditions affecting sleep;

• Other medical conditions requiring regular medication on a strict timetable.

This list is not exhaustive and the effects of these conditions on fitness for night work will often be only temporary. A health and capacity assessment for young person’s will need to consider issues like physique, maturity and experience, and take into account competence to undertake the night work that has been assigned.

The employer will need to take the following courses of action:

• Decide how to conduct the health assessment. There is no prescribed procedure for this. As a minimum, employers could construct a screening questionnaire for workers to complete before beginning night work. This would need to be suitably adapted for regular updating and should be compiled with guidance from a qualified health care professional such as a doctor or nurse familiar with the nature of the employer’s business and the issues associated with working at night.

As a guide, the questionnaire should explain its purpose, the nature of the work to which the individual is being assigned and ask whether the worker suffers from any medical condition or is undergoing any medical treatment such as those listed above that might affect their fitness to work at night.

• Screening of responses to such questionnaires should be conducted by people trained to interpret the information. This will enable them to identify those individuals with conditions that may be affected by night work. Where answers to the screening questionnaires raise any doubts about an individual’s fitness to work at night, the individual should be referred to a suitably qualified health care professional for further assessment and for an opinion as to whether the worker is fit to carry out the work to which they are to be assigned.

• Health assessments can be provided through a variety of means, for example an employer’s own occupational health service, by employers arranging for workers to consult their own doctors, or by employers buying in suitable external provision, such as from a local occupational health service or doctors practice, to carry out assessments on the employer’s behalf. The employer should provide the assessor with an explanation of the type of night work (duration, shift pattern, etc.) to which the worker is to be assigned.

• Two types of information arise from the health assessment. A simple fitness for- work statement should be provided by the health care professional to the employer. Clinical information, however, must remain confidential and can only be released to an employer (or anyone else) with the worker’s written consent.

• Decide how often the opportunity for a reassessment should be offered. Where appropriate, the employer should be guided by the judgement of a health care professional. As a rule of thumb, it would be prudent for repeat screening questionnaires to be completed annually.

• Decide whether any workers should be transferred to day work, if possible. Where a worker’s fitness for night work becomes affected by a disability, employers have a duty to make reasonable adjustments, which might include changes to the worker’s hours of work. Employers also need to give special consideration to new and expectant mothers and young persons.

• Decide what records should be kept. These must be adequate to show the employer has complied with the requirements for health assessments. As a minimum they must show who is a night worker, when they had an assessment and the result of the assessment. The simple fitness-for-work statement and screening questionnaire containing non-clinical information should be stored with an individual’s personnel records. Records must be kept for two years.

Rest Breaks and Periods

Employers should consider the following:

• the arrangement of worker’s working time and whether workers are able to take their rest entitlements;

• whether any of the exceptions apply, such as variations agreed in workplace agreements;

• The different entitlements that apply to young persons.


Published: 03 Jun 2011


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