If you are an employer who hires night workers, there are several obligations to be aware of to ensure they are fit to work at night. These obligations are important not only for the general day-to-day running of your business or organisation, but they can also bear a significant commercial and reputational impact.
Who are Night workers?
The Working Time Regulations 1998 (‘WTR 1998’) define a night worker as a worker “who, as a normal course, works at least three hours of [their] daily working time during night time.” The night time period is generally between 11pm and 6am, unless a different ‘night period’ is agreed between the worker and employer.
What health assessment obligations do employers have?
A health assessment usually takes the form of a questionnaire written by a qualified health professional. The overall purpose of the assessment is to ensure that the health and safety of night workers is protected and to check they can carry out the required job role without placing other workers or themselves at risk.
If individuals have a certain medical condition such as diabetes, insomnia, intestinal disorders or heart disorders, the risks of workplace hazards may be greater. Ensuring a questionnaire is completed allows the referral of individuals to a qualified health professional for further assessment and ensures the employer is giving due consideration to the health of their prospective and/or current workers.
When are health assessments required?
Before the job role is assigned:
It is important to flag that this health assessment obligation commences before the night worker begin their role.
Employers should not assign an adult a night worker role unless they have ensured the worker will have the opportunity of a free health assessment before they take up the assignment. If the worker has already completed a health assessment before being assigned the role, then employers need to be satisfied that the assessment remains valid.
The timing of this health assessment emphasises that the obligation to consider the health of night workers must be an early consideration and commences prior to assignment of the night worker role.
During the job role:
The obligation to offer health assessments does not stop once a worker has been assigned a night worker role.
Once assigned to their role, a night worker needs to have the opportunity of free health assessments presented to them at regular intervals. The duration of the intervals themselves are flexible and can be circulated to night workers as deemed appropriate by the employer. For example, an employer may repeat the process regularly for existing staff, provide health assessments for all new starters prior to a start date, and if an existing employee develops a health issue that may impact them working at night.
It would be considered best practice to continue to offer the health assessments on a regular basis, even if worker opts not to (and continues not to) accept the offer. If night workers refuse to complete the health assessment questionnaire, employers should ensure there’s a clear record or confirmation in writing confirming that worker did not wish to do so (ideally, by the night worker themselves).
The key point to remember is that the act of offering the assessment ensures that employers are fulfilling their obligations under the WTR 1998.
What happens if a risk is identified in the health assessment?
If a risk is identified, the government recommends that night workers are referred to a qualified health professional.
In accordance with the WTR 1998, if a registered medical practitioner advises an employer that the worker they are assessing suffers from health problems connected to night work, then an employer duty to transfer the worker to better suited work could arise. If this transfer to suitable work is possible, for periods where the worker ceases to be a night worker, then an employer would need to accommodate the transfer accordingly.
What are the consequences of not doing health assessments?
If a night worker became injured during night work and you, as the employer, did not offer the health assessments when required, then this could result in the Health and Safety Executive (HSE) or other relevant local authorities investigating your business and potentially issuing criminal proceedings.
The consequences of not offering health assessments could not only result in night workers becoming injured or unwell, but further investigations could also detrimentally impact your business commercially and raise concerns as to how staff are treated in their course of employment.
Non-compliance is therefore a ‘lose-lose’ situation for both staff and employers.
What practical steps can employers take?
- Ensure that staff health, safety and wellbeing is being appropriately prioritised in the workplace
- Ensure you are aware of the different rules for young people seeking to work during the night compared to adults
- Ensure you are keeping a clear confidential record of health assessments (for a period of at least two years)
- Ensure you are logging the dates on which the health assessments are offered to your workers
- Ensure that health assessments are being offered to your workers at no financial cost to them
- Adopt a clear internal management system for the health assessments, whether for pre-employment screening or when offering assessments at later regular intervals
- Ensure you are complying with the WTR 1998
If you are unsure about your compliance with the above, for further guidance on health assessments in the workplace, please refer to our Employment team. Alternatively, if you have wider health and safety compliance concerns, please contact our specialist Regulatory team led by Partner, Steve Panton.