Health and safety and nightshift working - reviewing the risks

19 August 2015


It is often said that getting a good night's sleep is the secret to success. Quality sleep allows minds to refocus and bodies to relax and bolsters relationships by boosting moods.

What happens, though, to those people whose working pattern results in their sleep being fragmented, irregular or minimal?  New research has highlighted the problems that working while we should be sleeping may cause. Professor Russell Foster of Oxford University has identified that, "the assumption has always been that our bodies adapt to the nightshift. But now neuroscience is beginning to unravel the fundamental mechanism of sleep…and the extraordinary finding is that we don't adapt."

The duty of care an employer owes to its staff is an ongoing one, adjusting to new scientific and medical research as it becomes available. This new research highlights the perennial problem of balancing commercial drivers, e.g. to keep production running overnight, with the potential consequences of night shift working on employees' cognitive abilities and the consequent impact on them and others who may be affected by their work.

Background

Currently, more than four million people in the UK are employed as shift workers. Shift work is of course essential in many manufacturing businesses, and certain public services such as the NHS, fire and police services need to be operational 24 hours a day, seven days a week. For some industries, such as the automotive sector, the flexibility of the option of 24/7 working may be essential throughout the year to ensure that continuous production needs are met. In other sectors, such as food and drink, seasonal requirements are likely to play a role, such as the need to keep up with demand during peak periods, like Christmas.

But while a 24/7 approach may be essential for some services and makes sound business sense for many commercial organisations that need to ensure clients' and customers' expectations are met and a competitive edge maintained, it is not necessarily good for workers.

The Working Time Regulations 1998 (WTR) contain specific obligations on employers relating to "night workers", including limits on their shifts (e.g. no more than eight hours on average in a 24 hour period) and a requirement to offer regular free health assessments. The basic definition of night work under the WTR is a seven hour period including midnight to 5am, and which is generally 11pm to 6am.

There have been numerous studies carried out which identify a list of various health issues suffered by those who work night shifts, including heart disease, metabolic syndrome and possible increases in the risk of cancer and premature death.

As well as, or perhaps in light of, Professor Foster's research, the impact of night shift work is also on the radar of trade unions. On 5 August 2015, the TUC published a report, "A Hard Day's Night" highlighting the effect of shift work on work/life balance. It is therefore a topic gaining increasing amounts of publicity.

Why should employers be concerned?

Employers need to understand that, as well as affecting employees' health, such working patterns can also be a factor when considering whether there has been a breach of the duty of care which employers owe to their employees and to others who may be affected by their work under the Health and Safety at Work etc Act 1974 and other legislation.

A workforce that is suffering mentally and physically may result in more serious consequences than just finding employees catching 40 winks on their break.

Employers' legal duty

Employers are legally bound to manage risks of fatigue suffered by their workforce, whether they are  working standard business hours or during the night. This applies regardless of whether an individual may be willing to work beyond their contracted hours or prefers to work a certain shift pattern to suit their personal circumstances. Compliance with legislation such as the WTR is not enough to protect an employer from being found liable for a potential injury to a member of their workforce or to others, which has occurred through lack of concentration caused by sleep deprivation. Employers need to actively engage with their staff and be alert to any behaviours or actions which suggest that an employee is struggling or that work patterns may be putting others at risk.

The court's new sentencing powers

New sentencing guidelines are expected to become effective from autumn 2015. The guidelines will mean that where an accident occurs and it is found that the employer failed to consider the risks (which will include the additional risks that night time working can involve) and/or failed to manage those risks effectively, the employer may well be prosecuted for a health and safety offence. Significantly, the employer may be faced with uninsurable penalties which will be much more substantial than prior to the introduction of the guidelines. Recognition and constant management of risks are critical in order for an employer to avoid being faced with large penalties.

Next steps

What can an employer do to protect itself and its staff? Consider the following:

  • Develop a policy which addresses and sets limits on working hours to prevent employees trying to work more hours than they should or manipulating the shift patterns to suit their own needs, while ignoring the consequences to their own health and that of others, and your duty towards them;
  • As always with such policies, ensure such instruction, training and supervision as is necessary is given in relation to it to make sure employees understand the policy, why it has been put in place and their obligations under it;
  • Check if your employees are "night workers" for the purposes of the WTR. If so, check the terms of any collective agreement covering night work. Keep records demonstrating compliance with the night-work limits and the offer of health checks;
  • Create and carry out routine risk assessments on the shift patterns which employees are working; any change in shift patterns should also be risk assessed and formally recorded.  You may also need to comply with employee consultation requirements in respect of any change;
  • Do not assume that a risk assessment based on daytime working applies equally to night time hours. A separate night time risk assessment may well be appropriate and any issues identified addressed and managed appropriately;
  • Identify "peak times" in workload and ensure that a plan is implemented to manage the increase. If stretching the existing workforce by offering overtime might result in employees experiencing further sleep deprivation and increase the likelihood of an accident occurring, you may need to look for an alternative option, e.g. employing additional staff to cover the peak period. That could be cheaper than a fine imposed or damage to reputation that arises as a result of any health and safety offence;
  • Regularly review each employee's shift pattern and organise frequent catch-ups to address any concerns you may have about an employee's performance or that they may have about their own performance. This is particularly important where warning signs of fatigue and lack of concentration have emerged. Ignoring such signs could prove costly;
  • Record any accidents which occur, identifying the employee involved, what time and what shift they had been working. Monitor this information to determine whether any patterns are occurring either with a particular employee or employees or during or immediately after particular shifts. Address any patterns that do appear.

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