Legal Article - Employment Law

Working Time Regulations

Coverage and Scope

The aim of the Regulations is to protect the health and safety of workers. Employers have a general responsibility to take reasonable steps to protect workers health and ensure that the limits set down by legislation are complied with for those workers to whom they apply.

Who are covered?

The Regulations apply to all workers over school leaving age, including those over normal retirement age, other than those described in the Working Time Regulations: Exemptions  section below. They apply to employees, any other individuals who undertake to do or perform personally any work or services for an employer (e.g. freelancers), trainees engaged on work experience or training other than that on a course run by an educational institution or training establishment, and agency workers. Where the latter are employed to do work for a principal under an arrangement made between an agency and the principal, the Regulations will apply to whichever one is responsible for paying the worker in respect of the work. They DO NOT apply to self-employed people i.e. they pursue a business activity on their own account and normally submit invoices.

Limits and Entitlements

The provisions of the Regulations are divided into two categories: statutory limits on working hours and a requirement to provide health assessments for night workers that will be enforced by the Health and Safety Executive and Local Authorities; and worker entitlements or rights which workers can uphold by reference to an Employment Tribunal.


Employees Under 18 Years of Age

Employees Under 18 Years of Age

Specific additional protection applies to young people over the minimum school leaving age and below 18 years of age. In England and Wales a person can leave school on the last Friday in June if they are 16 or will be 16 before the start of the next school year.

In Scotland if a person is 16 between 1 March and 30 September in the final school year then they can leave school on the 31 May; if a person is 16 between 1 October and the last day of February in the final school year then they can leave school on the first day of the Christmas holidays.

Employee Exemptions

Employee Exemptions

“Mobile” workers employed in road, air, rail and water transport are at present totally excluded from the Regulations, other than the provisions relating solely to young people below the age of 18. The exclusions relate specifically to the sectors specified i.e. the transport of goods etc. Industries involved with service, repair etc. of vehicles, or the hire or collection of vehicles are unlikely to be classified as “road transport”.

However, own account transport operations where a company operates a fleet of vehicles to deliver goods to its own premises are likely to be considered to be in the transport sector, although van drivers delivering parts are unlikely to be so included. It is unclear at this point in time whether non-mobile workers are covered (e.g. cleaners), or whether the mere location of work activity in, for example, a road transport terminal is sufficient to make workers carrying it out subject to exclusion. The same applies to workers involved in the movement of goods or people to or from a mode of transport such as loading/unloading onto/from road vehicles.

Partial Exemptions

Workers where, on account of the specific characteristics of the activity in which they are engaged, the duration of their working time is not measured or predetermined or can be determined by the workers themselves, are excluded from the limits on weekly and night working hours and the minimum daily and weekly rest periods and rest breaks, but not the holiday provisions.

It is essential that these workers genuinely control how many hours they work and these are not monitored or determined by the employer. Such a situation may occur if a worker can decide when the work is to be done, or may adjust the time worked as they see fit. An indicator may be if the worker has discretion over whether to work or not on a given day without needing to consult their employer.

The Regulations cite as examples managing executives or other persons with autonomous decision-taking powers and family workers. It may also cover mobile sales staff, home workers or those working flexible hours, but is unlikely to cover supervisors or junior managers.

However, it is the characteristics of a worker’s activity that will determine whether the limit may be excluded.

Partly Unmeasured Working Time

Partly Unmeasured Working Time

There is an exception for workers who have an element of their working time pre-determined, but otherwise decide how long they actually work.

There is a test:
“the specific characteristics of the activity are such that, without being required to do so by the employer, the worker may also do work (in addition to that which is measured or pre-determined) the duration of which is not measured or pre-determined or can be determined by the worker themselves.”
 
Any time spent on such additional work will not count as working time towards the weekly working time or night work limits, Simply put, additional hours which the worker chooses to do without being required to by their employer do not count as working time; therefore, this exception is restricted to those that have the capacity to choose how long they work. The key factor for this exception is worker choice without detriment.

Some or none of a worker’s working time may meet the test. Any working time that does meet it will not count towards the 48-hour weekly working time limit or the night work limits

This exception does not apply to:
• working time which is hourly paid
• prescribed hours of work
• situations where the worker works under close supervision
• any time where a worker is expressly required to work e.g. attendance at meetings
• Any time a worker is implicitly required to work e.g. because of the loading or requirements of the job or because of possible detriment if the worker refuses.

No one can be forced to work more than an average of 48 hours a week against their will; this does not remove this protection from any worker. It applies to working time- it is not confined to any particular category of worker, but applies where the specific characteristics (i.e. the nature) of their work meet the test set out above.

The following categories of workers are excluded from the limits on night work and the daily and weekly rest periods and daily rest breaks, although equivalent compensatory rest periods must be given, and the period over which the average 48 weekly hours are calculated can be 26 weeks instead of seventeen:

• A worker’s activities are such that their place of work and place of residence are distant from one another or their different places of work are distant from one another. This may apply to workers where, because of the distance from home, it is desirable for them to work longer hours for a short period to complete the task more quickly or where continual changes in the location of work make it impractical to set a pattern of work;

• a worker is engaged in security and surveillance activities which may require round-the-clock presence to protect property or a person (petrol forecourts may be covered);
• a worker’s activities involve the need for continuity of service or production, especially where there is a need for round-the-clock activity or where work cannot be interrupted on technical grounds (petrol forecourts and vehicle recovery operations maybe covered);
• there is a foreseeable surge of activity;

• A worker’s activities are affected by an occurrence due to unusual and unforeseeable circumstances, beyond the employer’s control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care, or an accident or the imminent risk of an accident.

This provision relates essentially to emergency situations or those that arise outside the normal course of events (vehicle recovery operations may be covered).

Working Time Agreement

Working Time Agreement

The Regulations allow for some of the measures to be adapted through agreements between workers and employers so as to allow the flexibility to take account of the specific needs of local working arrangements. There are three types of agreement:

• collective agreements between an independent trade union and an employer or employers’ association;

• Workforce arrangements where there is no trade union. These may apply to the whole of the workforce or a group of workers within it. Where it is to apply to a group of workers, the group must share a workplace, function or organisational unit within a business. To be valid, a workforce agreement must:

a. be in writing
b. have been circulated in draft to all workers to whom it applies together with guidance to assist their understanding of it;
c. be signed, before it comes into effect, either

• by all the representatives of the members of the workforce or group of workers; or

• if there are 20 workers or less employed by a company, either by all the representatives of the workforce or by a majority of the workforce;

d. has effect for no more than five years.

The employer must arrange the election of the representatives. To do so, the employer should:

I. decides on the number of representatives. This will depend on the size of the workforce or the group to be represented.

ii. Ensure so far as is reasonably practicable that the elections are conducted by secret ballot;

iii. Ensure the votes are counted fairly and accurately;
iv. Allow each worker a vote for each representative to be elected to represent them;

v. ensure candidates are members of the workforce on the date of the election or, in the case of a group, a member of the group to whom the agreement is to apply,

vi. Not to unreasonably exclude any member of the workforce from standing as a candidate.

It is possible for an elected representative to be elected for other purposes such as a representative of employee safety or collective redundancies, so long as it is made clear to those voting that the representatives were being elected for both purposes.

• Relevant agreements: any agreement in writing which is legally binding between a worker and their employer. Relevant agreements may include provisions of a collective agreement or maybe between an individual worker and employer, such as in a contract of employment.

Compensatory Rest. Some of the exceptions described above require either an equivalent period of compensatory rest, or in exceptional cases, where providing this is not possible, be given other appropriate protection. An equivalent period of rest should be considered to be a period of rest as long as that the worker was entitled to but not able to take. Compensatory rest should be provided within a reasonable time from when the entitlement to rest was modified.

 

Statutory Maximum Working Hours

Statutory Maximum Working Hours

The 48-Hour Working Week

Employers are required to take all reasonable steps to ensure that workers do not work more than an average of 48 hours a week over a 17 week period.

Workers on unmeasured working time are exempt from this limit and individual workers can agree to opt out. The averaging period can be 26 weeks for certain categories of workers and collective and other agreements can agree to extend the averaging period to 52 weeks, providing there are objective or technical reasons concerning the organisation of work.

Working time means:

• any period during which a worker is working at their employer’s disposal and carrying out their activities or duties

• any period during which they are receiving relevant training, and

• Any additional period which is to be treated as working time under a relevant agreement.

Time when a worker was “on call” but otherwise free to pursue their own activities would not be working time as the worker would not be working. Similarly, if a worker is required to be at the place of work “on call”, but was sleeping though available to work if necessary they would not be working and so the time spent asleep would not count as working time.

Also, a lunch-break spent at leisure would not be working time. Travel that is required by the job would be working time, but not travel to work, It is unclear at present whether travelling outside normal working hours to attend a training course would be included or not.

Time spent on compulsory training in the evenings at a hotel would be working time, but not social activities. Work taken home on a previously agreed basis with the employer would be working time, but not otherwise.

Working time does not necessarily equate to the time for which an employee is paid, or to contractual hours. Employers and workers can clarify in a relevant agreement what is the definition of working time.

Working Time Reference Period

The standard reference period is 17 weeks. The Regulations say it is any period of 17 weeks in the course of a worker’s employment (in effect a rolling reference period). Employers and workers can agree to it being consecutive periods of 17 weeks with clearly defined dates, or can agree a longer reference period.

If a worker has worked for an employer for less than 17 weeks, the reference period is the period worked to date. Thus, when a worker has worked for four weeks, their average working time should be calculated as an average over that period. It is not possible, therefore, for a new worker to work longer than 48 hours in the first week without infringing the Regulations, unless an individual opt-out has been agreed.


Individual Opt-Out.

An individual worker may choose to agree to work more than the 48-hour average weekly limit. If they do so, the agreement must be in writing and must allow the worker to bring the agreement to an end. The agreement may specify a notice period of up to three months. If no notice period is specified, however, only seven days’ notice would be required. To end the agreement a worker must give written notice to their employer.

An employer must also:

• Maintain records showing which workers have made this type of agreement.

• Make such records available to Health and Safety Executive Inspectors or local authority Environmental Health Officers should they wish to inspect them.
Working Time Records

Employers’ needs to keep adequate records to show they have complied with the weekly working time limit. It is for the employer to determine what records need to be kept. They must be kept for two years. An employer is not required to keep a running calculation of workers’ average weekly working time.

If an employer’s practice does not include recording hours worked by workers because there is a contract stipulating standard working hours (e.g. a regular 9am - 5pm, or 39 hour week), it may be sufficient to meet the requirements by using management systems to ensure the specified hours are kept.

Working Time Regulations Enforcement

This measure will be enforced by the Health and Safety Executive (HSE) or local authority Environmental Health Department in accordance with the Health and Safety (Enforcing Authority) Regulations 1998. In general, the HSE is responsible for motor retail premises and Local Authority Officers for petrol retail sites.

Working at Night

Working at Night

A night worker, is an employee who works at least 3hours between 11pm and 6am on a regular basis. These employees must be offered a free health assessment as frequently as possible. Employers are required to take all reasonable steps to ensure that the ‘normal’ hours of their night workers do not exceed an average of eight hours for each 24 hours over a 17 week period. There is no equivalent individual opt-out as for the 48-hour week.

Also, a “forward” calculation to take account of normal hours is required, whereas it is retrospective in the case of calculating the 48-hour average. Workers on unmeasured working time and certain other workers in special circumstances are exempted from this limit and collective and workforce agreements can modify or exclude the limit.

The latter could agree a longer reference period. Where special circumstances or agreements apply compensatory rest or other appropriate protection must be provided.

Night time

This is a period of at least seven hours, which includes the period from 11pm to 6am. The actual hours can be varied by the employer.

Who is a Night Worker?

Any worker whose daily working time includes at least three hours of night time:
 
• on the majority of the days they work;

• on such a proportion of the days they work as is agreed between employer and workers in a collective or workforce agreement; or

• Sufficiently often that they may be said to work such hours as a normal course i.e. they do so on a regular basis. For example, on a rotating shift pattern that results in them working regularly during night time, as opposed to on an infrequent or ad hoc basis.

Reference period

This is determined in the same way as for the 48-hour week.

Special hazards

Where a night worker’s work involves special hazards or heavy physical or mental strain, there is a limit of eight hours on the worker’s actual daily working time. The limit must be observed in any period of 24 hours during which the night worker performs such work. The work to which this limit applies is identified:

• by agreement between employer and workers in a collective or workforce agreement; or
• As posing significant risk by risk assessments an employer has conducted under the Management of Health and Safety at Work Regulations 1992.

Working Time Records: Night Shift Workers
This is the same as for the 48-hour week.

Working Time Regulations Enforcement: Night Workers

The same as under the 48-hour section above.


Health Assessments for Night Workers

Health Assessments for Night Workers

Employers must offer a free health assessment to any worker before they are put on night work. Employers must also give night workers the opportunity to have further assessments at regular intervals.

Free means that employers pay any costs and the workers do not lose wages or incur any other expenses because of having an assessment carried out. The purpose of the assessment is to determine whether the worker is fit to undertake night work.

Regular intervals are not defined in the Regulations, but will vary between individuals according to factors such as the type of night work, its duration and the age and health of the worker. Where appropriate the employer should be guided by the judgement of a health care professional.

Any workers who are night workers on 1 October 1998 should promptly be given the opportunity to have a health assessment, unless the worker has had such an assessment on an earlier occasion and the employer has no reason to believe that assessment is no longer valid.

This would also apply after the 1 October to other workers who are to do night work.
Young persons are entitled to a health and capacities assessment if they work during the period 10pm to 6am.

From Night Shift to Day Shift

If a night worker is found to be suffering from health problems that are recognised as being connected with night work, they are entitled to be transferred, whenever possible, to suitable day work. Where no alternative suitable day work is available and where the employer has taken all reasonable measures to try and accommodate the worker, including consulting them, any subsequent dismissal will probably be fair.

Working Time Records: Health Assessments

Employers must keep adequate records that show they have complied with the requirement to provide for health assessments. These can be in any form, but must show who is a night worker, when they had an assessment and the result of the assessment. After every assessment the health care professional should provide the employer with a simple fitness-for-work statement. These should be kept. Clinical information, however, must remain confidential and can only be released to an employer with the worker’s written consent.

Working Time Regulations Enforcement: Health Assessments

The HSE or local authority Environmental Health Departments will do so.

Employee Entitlements

Employee Entitlements

Rest Breaks

Workers are entitled to an uninterrupted break of 20 minutes when daily working time is more than 6 hours. Young persons under 18 years of age are entitled to an uninterrupted break of 30 minutes when daily working time is more than 4.5 hours.

Where a young person is employed by more than one employer, working time is to be aggregated for the purpose of establishing whether they are entitled to a rest break. These breaks should be in working time and should not be taken either at the start, or at the end, of a working day.

The break should not overlap with a worker’s daily rest period.

Workers on unmeasured working time and certain other workers in special circumstances are exempted from this limit and collective and workforce agreements can modify or exclude the limit. The latter could agree a longer reference period.

Where special circumstances or agreements apply compensatory rest or other appropriate protection must be provided. These do not apply to young persons under 18 years of age, but their entitlement to a rest break may be modified or excluded:

• in the case of an occurrence due to unusual or unforeseeable circumstances, beyond the employer’s control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care by the employer;

• when the young person’s employer requires them to undertake work which is of a temporary nature and must be performed immediately; and
• No adult worker is available to do the work in place of the young person.

All the relevant conditions have to apply. Any young person carrying out work in these circumstances must be allowed equivalent compensatory rest time within the following three weeks.

Pattern of Work

Where a pattern of work involving uninterruptible or monotonous activities puts the health and safety of a worker at risk, an employer needs to consider granting regular breaks in order to reduce these risks.

Pay

The Regulations do not specify whether breaks should be paid or not. Payment is a matter for workers’ contracts with their employer.

Enforcement of Rest Breaks

The entitlement to a rest break can be enforced by workers bringing a complaint to an Employment Tribunal. The choice of whether to seek legal redress is entirely the worker’s and they may wish not to bother. In any event a worker should try to settle a dispute through the company’s grievance procedure before going to a Tribunal. The Tribunal can make an award of compensation to the worker and in doing so; will look at both the employer’s default in refusing to permit the exercise of the worker’s entitlement, and any loss sustained by the worker as a consequence of that default.

 

Employee Rest Periods

Employee Rest Periods

Minimum Daily Rest Periods

Adult workers are entitled to a rest period of 11 consecutive hours between each working day. Young persons are entitled to an uninterrupted period of 12 hours’ rest in each 24-hour period during which they work. This does not apply if periods of work are split up over the day or are of short duration.

Weekly Rest Periods

Adult workers are entitled to an uninterrupted rest period of no less than 24 hours in each 7 day period. This may be averaged over a two week period.
The employer has two options to choose from:
• two uninterrupted rest periods each of not less than 24 hours in each 14 day period, or

• One uninterrupted rest period of not less than 48 hours in each 14 day period.

Young persons are entitled to two days’ rest in each week. This cannot be averaged over a two-week period. A young person’s weekly rest period may be reduced to 36 hours, where justified by technical or organisation reasons. Such reasons would be inherent in the nature of the work or its desired purpose.

Daily and weekly rest periods are separate entitlements, which should be taken consecutively. Weekly rest is also to be additional to any paid annual leave to which a worker may be entitled under these Regulations.

Shift Workers Rights

When a shift worker changes shift, it may not be possible for them to take their full rest entitlement before starting the new pattern of work. In such a case, the entitlement to daily and weekly rest does not apply. The entitlements also do not apply where a worker’s work is split up over the day and so precludes taking 11 hours’ continuous rest e.g. cleaning staff that has a morning and evening shift.

Workers on unmeasured working time, certain other workers in special circumstances and shift workers are exempted from this limit and collective and workforce agreements can modify or exclude the limit.

The latter could agree a longer reference period. Where special circumstances or agreements apply compensatory rest or other appropriate protection must be provided. These do not apply to young persons under 18 years of age, but their entitlement to a rest break may be modified or excluded.
• in the case of an occurrence due to unusual or unforeseeable circumstances, beyond the employer’s control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care by the employer;

• when the young person’s employer requires them to undertake work which is of a temporary

• nature and must be performed immediately; and

• No adult worker is available to do the work in place of the young person.

All the relevant conditions have to apply. Any young person carrying out work in these circumstances must be allowed equivalent compensatory rest time within the following three weeks.

Working Time Regulations Enforcement: Rest Periods

The entitlement to a rest period can be enforced by workers bringing a complaint to an Employment Tribunal (used to be called Industrial Tribunals). The choice of whether to seek legal redress is entirely the worker’s and they may wish not to bother. In any event a worker should try to settle a dispute through the company’s grievance procedure before going to a Tribunal.
The Tribunal can make an award of compensation to the worker and in doing so; will look at both the employers’ default in refusing to permit the exercise of the worker’s entitlement, and any loss sustained by the worker as a consequence of that default.

Paid Annual Leave Entitlement

Paid Annual Leave Entitlement

Workers are entitled to the statutory 5.6 weeks of paid leave per year, this includes bank holidays and public holidays. If employers wish to exclude bank holidays, the entitlement becomes 4 weeks and 3 days.

This is not additional to contractual entitlements. Taking contractual paid leave in a particular leave year therefore counts against the worker’s entitlement under the Regulations.
It is at the employer’s discretion to extend contractual entitlements, but the statutory entitlement cannot be reduced. A worker is entitled to the terms in either the Regulations or their contract whichever is the most favourable to the worker.

Leave Years

This would normally be whatever has been agreed between the employer and the worker.

Where a worker starts work part way through the leave year their entitlement is proportionate to the amount of the leave year that the worker works. Correspondingly, if a worker’s employment is terminated during a leave year the entitlement is again proportionate to the part of the leave year that remains.

There is no right to leave that is not taken at the end of a leave year under these Regulations, it is at the employer’s discretion to carry over the leave or to pay employee’s for any leave not taken. The leave entitlement cannot be replaced by an “allowance in lieu” i.e. pay or extra pay replacing actual leave to which the worker is entitled, except where the employment relationship is terminated.

Part Time Employees

Workers who work less than a normal week are entitled to a proportionate part dependant on the number of days they work e.g. someone who has 4 weeks (20 days) then their proportion will be 4 x no of days worked each week. If part time worker’s working time is set in terms of hours, their annual leave might be expressed in terms of hours too e.g. someone working 24 hours a week would be entitled to 72 hours annual leave.

In relation to casual non fixed staff:

B works 10 hours in the first and second week of the month, 5  in the next and non in the next. Their rate would be worked out by the number of annualised hours they worked.  This is worked out using the following:

Firstly using the figure of 12.07% (this is the percentage of the working year that is taken by holiday entitlement, i.e.5.6 weeks / 46.5 days = 12.07) as the percentage of holiday in one year.

This is then divided by 100 and then multiplied by the number of hours worked in that week so in B’s case; 12.07/100x10 = 1.21 minutes. This will therefore be B’s accrued holiday entitlement for that week.

Over the 4 week period above B will therefore accrue the following;
Week 1: 12.07/100x10 = 1.21 minutes
Week 2: 12.07/100x10 = 1.21 minutes
Week 3: 12.07/100x5 = 0.60 minutes
Week 4: 0 minutes as no hours have been worked.

Therefore over the 4 weeks B is entitled to 3 hours holiday pay.  If B chooses to take a day as holiday then they will be paid for 3 hours. If you can roughly annualise this for the year i.e. saying they work an average of 7 hours every week then the calculation will be made easier for you, as they will accrue the same number of minutes every week i.e. 12.07/100x7=0.84 minutes which over a year equate to 44 hours.

Notice of Leave

The Regulations lay down a procedure and limits for employers and workers informing each other when leave is, and is not, to be taken, although the parties can agree their own arrangements. The Regulations say:

• An employer can require a worker to take all or any of the leave to which the worker is entitled at specified times, provided that the worker is given prior notice. The notice period should be at least twice the period of the leave to be taken e.g. if the employer wants to close for one week they should give at least two weeks’ notice to their workers

• A worker is required to give notice to the employer of when they wish to take leave. The notice period should be at least twice the period of the leave to be taken e.g. to take one day’s leave two days notice would have to be given seven days leave would require 14 days notice. This is to enable the employer time to refuse that leave if, for example, a number of other workers had also applied for leave on the same day;

• An employer may refuse the worker permission to take the leave requested. To do so, they must notify the worker within a period equivalent to the period of leave.

Payment for Annual Leave

Workers are entitled to be paid their normal pay for all leave taken. This is:

• in the case of a worker with regular working hours, what they would earn for a normal working week; where pay varies weekly/monthly due to bonuses or commission earnings, a week’s pay is calculated as an average of their previous 12 weeks earnings;

• in the case of a worker whose normal working hours vary from week to week, the average hourly rate of pay they get multiplied by an average of their normal weekly working hours over the previous 12 weeks;

• In the case of a worker with no normal working hours it is the average pay received over the previous 12 weeks.

A worker’s normal working hours are those fixed by their contract of employment. Overtime hours are excluded unless specifically included in the terms of the contract of employment. Therefore, they would not normally be included in the calculation of a weeks’ pay.
Workers are entitled to payment in lieu of leave only when their employment is terminated during a leave year, whether by the employer or worker. Unless the contract says otherwise, the amount due is calculated by using the formula (A * B) – C where:

• A is the period of leave which the worker is entitled to;
• B is the proportion of the worker’s leave year which expired before their employment ended; and
• C is the period of leave taken by the worker between the start of the leave year and the effective date of termination.

The Regulations also provide for an employer to be compensated where a worker receives more paid leave than was properly due to him/her, i.e. leave proportionate to the amount of leave year worked on termination.

Working Time Regulations Enforcement: Annual Leave

The entitlement to paid leave can be enforced by workers bringing a complaint to an Employment Tribunal. The choice of whether to seek legal redress is entirely the worker’s and they may wish not to bother, In any event a worker should try to settle a dispute through the company’s grievance procedure before going to a Tribunal.
 
The Tribunal can make an award of compensation to the worker and in doing so; will look at both the employer’s default in refusing to permit the exercise of the worker’s entitlement, and any loss sustained by the worker as a consequence of that default

Employer Good Practice

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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