Employment law rules for night shifts

    night working rules

    IN THIS ARTICLE

    Night shifts are a common feature in today’s economy. Understanding your workers’ rights and your responsibilities as an employer can help ensure your workforce stays safe and that you don’t fall foul of the employment laws on night working and working unsociable hours.

    The following guide for employers sets out the employment law on night shifts, including night worker regulations and statutory protections afforded to workers and the employer’s legal obligations.

    Night shift employment laws

    The law in relation to night shift working and working unsociable hours is primarily governed by the provisions of the Working Time Regulations 1998, including:

    • the definition of a night worker and night working
    • the limits on night working
    • the exceptions to the limits on night working
    • night work involving special hazards and heavy physical or mental strain
    • the rules relating to night working for young workers.

    Who is classed as a night worker?

    Staff who regularly work at least three hours during the night as a normal course are classed as night workers. The ‘night’ is typically taken to run from 11pm in the evening to 6am in the morning, unless the worker and employer agree to a different period in writing. If agreement is reached for a different night time period, this must be at least seven hours long and include the timeframe between midnight to 5am.

    An individual may also be classed as a night worker if there’s a collective or workforce agreement in place that states that their work is night work.

    Limits on night working & working unsociable hours

    Workers who normally work at night, including those on regular rotating shifts, but excluding those who only occasionally work nights, are protected under the 1998 Regulations.

    As a night worker, staff should not work more than an average of eight hours on night work in each 24-hour period, typically calculated over a 17-week period. Workers cannot opt out of this night working limit, unless allowed for under a collective or workforce agreement. The reference period may also be modified by a collective or workforce agreement.

    The special rules relating to night working apply in addition to the general rules under the 1998 Regulations relating to maximum weekly working hours and rest breaks. This means that as with day workers, night workers must not usually work more than 48 hours a week on average, unless they opt out. They’re also entitled to the following three types of rest break:

    • Rest breaks at work: workers have the statutory right to one uninterrupted 20 minute rest break during any shift of more than 6 hours
    • Daily rest: workers have the statutory right to 11 hours rest between shifts
    • Weekly rest: workers have the statutory right to either an uninterrupted period of 24 hours each week without any work or 48 hours each fortnight.

    Exceptions to night working limits

    The regulations restricting the length of night work to eight hours in any 24-hour period do not apply to certain workers or in certain scenarios, including if:

    • the worker has to travel a long distance from home to work or between places of work
    • the worker is doing security or surveillance-based work, like security guards or caretakers
    • the worker is in a job that requires round-the clock staffing, such as hospitals or prisons
    • the industry has busy peak periods, like agriculture, tourism or postal services
    • there’s an occurrence due to unusual and unforeseeable circumstances
    • there are exceptional events, the consequences of which could not have been avoided
    • there’s an accident or the imminent risk of an accident
    • if a collective or workforce agreement excludes or changes the restrictions on night work.

    If night work limits do not apply, the rules relating to rest breaks mean that workers must get compensatory breaks to make up for their extra time at work. Employers must also still follow the general rules on the maximum weekly working limit.

    The limits on night working hours don’t usually apply to the armed forces and emergency services, to domestic staff employed in private houses, or where people can choose how long they work, for example, company executives or freelancers. The limits also don’t apply to workers in road, sea and air transport, but they’re still entitled to ‘adequate rest’.

    Special hazards & physical or mental strain

    Staff whose work involves special hazards, or heavy physical or mental strain, should not perform work for more than eight hours in any 24-hour period during which the worker performs night work. This is an absolute daily limit that cannot be averaged out, where their actual hours must not exceed eight hours in any 24-hour period.

    Work is regarded as involving special hazards, or heavy physical or mental strain, if it’s identified within a collective or workforce agreement that takes account of the specific effects and hazards of night work. Alternatively, work will fall within this definition if it’s recognised within a risk assessment as involving a significant risk to the health or safety of workers.

    Night working rules for young workers

    There are special rules on night work for young workers aged 16 or 17. A young worker is essentially someone who is under 18 but over school leaving age. Young workers should not ordinarily work at night between the hours of 10pm and 6am, or between 11pm and 7am if the employment contract provides for work after 10pm.

    In certain types of employment a worker aged 16 or 17 can work at night but only if there’s no adult available to do the work and they’re needed to either handle a sudden increase in demand or so as to maintain continuity of a service or production. This includes work in:

    • agriculture
    • cultural, sporting, artistic or advertising activities
    • hospitals
    • hotels or catering
    • retail
    • post or newspaper delivery.

    Where asked to undertake night work, the training needs of the young worker must not be adversely affected and they must be given an equivalent period of compensatory rest.

    If a worker is under 18, they cannot usually work more than 8 hours a day or 40 hours a week. They must also have a minimum rest break of 30 minutes if their shift is longer than 4.5 hours, 48 hours off in one go each week and at least 12 hours off between each working day.

    Additional night worker rights

    In addition to the rights under the Working Time Regulations 1998, night shift workers also have the right to the National Minimum Wage (NMW). However, under the National Minimum Wage Regulations 2015, there is no statutory entitlement to a higher night working rate.

    The number of hours that night workers are entitled to the NMW depends on whether they are expected to work or sleep for most of their shift. Care workers, for example, who are provided with suitable sleeping facilities and are expected to sleep for most of their night shift are only entitled to minimum wage for the periods when they’re awake to perform work-related tasks. In contrast, workers expected to work for most of a night shift will get the minimum wage for their whole shift, even if they’re permitted to nap between tasks.

    In the recent decision in Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8, the Supreme Court confirmed that staff on sleep-in shifts are only entitled to have their hours counted for NMW purposes when they’re “awake for the purposes of working”. The Court drew a clear distinction under the 2015 Regulations between carrying out ‘actual work’ on the one hand and being ‘available for work’ on the other.

    Where applicable, the minimum hourly rate depends on the night worker’s age. There are rates for the National Minimum Wage (for those of at least school leaving age) and the National Living Wage (for those aged 23 and over). The rates change on 1 April every year.

    Age Rates from 1 April 2022 Rates from 1 April 2021
    23 years and over (National Living Wage) £9.50 £8.91
    21 years to 22 years £9.18 £8.36
    18 years to 20 years £6.83 £6.56
    Under 18 years £4.81 £4.62
    Apprentices aged under 19, or aged 19 or over and in the first year of their apprenticeship £4.81 £4.30

    These are the minimum rates that a worker must be paid for actual night work, although the employer can agree to pay a higher contractual rate to reward their staff for working antisocial hours. The employer may also offer other incentives, such as extra time off, for example, matching the number of nights on with an equivalent number of days off.

    Employer obligations

    An employer is under a number of statutory obligations in the context of night working and working unsociable hours, not least because the possibility of mistakes, accidents and injuries can significantly increase if a night worker is fatigued or stressed.

    Specifically, the employer must:

    Control night work hours

    Employers must take all reasonable steps, in line with the need to protect the health and safety of their workers, to ensure that the limit on night working is complied with. This means that employers must find effective ways to ensure that their night shift workers don’t work in excess of an average of eight hours within a 24-hour period, for example, implementing efficient rota planning policies to help keep track of each worker and how long their shifts last.

    Offer free health assessments

    Employers must offer free health assessments to any potential new night shift worker. This could be by way of a well-designed questionnaire to identify workers whose health might be harmed by night work. Such workers could then be referred to a qualified health professional for a fuller assessment in the event of any concerns.

    It is compulsory for employers to make the health assessment available, although it is up to the individual worker whether they accept it. The employer also needs to continue to offer health assessments regularly to their night shift workers. Where a worker is suffering from health problems which are considered to be related to the fact that they perform night work, the employer must instead offer suitable daytime work where possible.

    Keep appropriate records

    Employers must maintain records to prove that night workers have not gone over the recommended night working limits. They also need to keep records of health assessments or the dates they offered health assessments for any workers who didn’t take up the offer. These records will need to be kept by the employer for a minimum period of two years.

    Carry out risk assessments

    Employers must carry out a suitable and sufficient risk assessment in the workplace to identify potential hazards and take measures to eliminate or control them, include any risks associated with night work. In circumstances where the risk assessment highlights a risk of workplace hazards, or heavy physical or mental strain, the employer must ensure that their night workers do not perform work for more than eight hours in any 24-hour period. The employer should also take any other reasonably practicable steps to reduce any risks.

    Employment law night shift FAQs

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    Legal disclaimer

    The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

    Author

    Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.

    Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.

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