In this guide, we'll discuss night work, the rights of night workers, and what you must do to comply with the law.
All of your staff have statutory employment rights, including any night workers. Complying with these rights means providing the correct rest periods, breaks, and working hours.
Failure to abide by these laws could have serious consequences for your business. For example, if you don't perform a health assessment on a night worker, they might get injured during night work.
As a result, the Health and Safety Executive (HSE) might investigate your business, which could result in financial and reputational damages.
In this guide, we'll discuss night work, the rights of night workers, and what you must do to comply with the law.
What are night workers?
Night workers are members of staff who regularly work at least three hours during the night period. They have different employment regulations than those who work regular hours. For example, they cannot opt out of their working time limit.
What hours are classed as night work?
The hours between 11pm and 6am are considered 'night working hours'. But, this could be a different period if the employer and worker agree. If they do, the period must:
- Be seven hours long.
- Fall between 12am to 5am.
- Be agreed to in writing or in their employment contract.
Employees are also considered night workers if they have a collective or workforce agreement - such as with a trade union - that states their work is night work.
What is the law for night workers in the UK?
The law that applies to nighttime workers is the Working Time Regulations (1998). The purpose of the legislation is to set rules for employers to help maintain their staff's Health & Safety.
It states:
- How many hours someone can work in a week, and if they're able to opt-out.
- How many rest periods they are entitled to, as well as daily breaks.
- Annual leave and what employers are required to provide.
- What is classed as a young worker and what their statutory entitlements are.
It also highlights the different rules for night workers. As they work during unsociable hours, they are exposed to different risks and hazards that must be removed or reduced.
What are the rest breaks and periods for night workers?
Night workers are entitled to the same rest breaks and periods as those working daytime hours. This is 20 minutes if they work more than six hours a day, and must be taken during the work day - not at the beginning or end. This is to ensure they receive an adequate rest period.
Your night workers might be entitled to compensatory rest breaks if they don't have the right to specific breaks. For example, if they're a shift worker who cannot take daily or weekly rest breaks, as they work sporadically. Check the gov website to find out if this applies to your workers.
What is the maximum number of hours night workers can perform?
Night workers cannot perform on average more than eight hours in a 24-hour period. Exceptions to this include if their work involves:
- Special hazards.
- Heavy, physical or mental strain.
In these instances, they cannot work more than eight hours in a 24-hour period, and you must not calculate their hours using an average.
Do night workers get paid more?
Night workers might get paid more by their employer, as recognition for working antisocial hours. But there is no official higher night working rate. Otherwise, night workers must be paid the National Minimum Wage, but this depends on whether they're working sleep-in shifts.
Those who are expected to sleep for most of their sleep-in shift will only receive the National Minimum Wage for the time they spend awake performing tasks. They must also be provided with suitable sleeping facilities.
What do employers have to legally provide for night workers?
As well as the above, night workers have extra legal protection that employers must comply with. You must offer each night worker a free health assessment before they join the business.
A qualified health professional must conduct the assessment - which can be as simple as a questionnaire. Remember to record:
- The result of the health assessments.
- The dates when assessments were offered.
But, it's up to the worker whether they decide to accept an assessment or not. If you believe your worker has health problems that affect their night work, you must request a follow-up examination. And ensure that you offer assessments to your other workers regularly.
Can night workers opt out of the Working Time Directive?
No, night workers cannot opt out of the Working Time Directive - including any overtime.
Can an employee refuse to work during the night time period?
If a worker's employment contract doesn't outline that they have to work during night time, then they can refuse to work night shifts if their employer asks. If you want your day workers to work during the night period, you would have to draw up a new contract that both parties agree to.
If you make an employee work at night when their contract doesn't outline this, you could risk breaching their contract. Meaning that they could raise a breach of contract claim against you to an employment tribunal. Consequently, you might face financial and reputational damages.
What are the exceptions to the night working limits?
There are several exceptions to the night work limits. For example, it doesn't apply to those who are in control of how and when they work, such as freelancers. This typically includes:
- Those in the armed forces and emergency services.
- Those working in catering, retail, post or newspaper delivery.
- Those travelling a long distance to get to work.
- Domestic staff employed at a private house.
- Jobs with round-the-clock staffing, such as those working in hospitals.
- Industries with busy peak periods, such as agriculture.
However, different rules apply to those working as an sea, air, transport or road worker.
Can young workers work during the night period?
Yes, young workers can work during the night period, but only in exceptional circumstances. A young worker is an employee of school leaving age, but under the age of 18.
You can ask a young person to work during the night if:
- No one 18 or over can do the work.
- The business is incredibly busy and services need to be maintained, or there is a sudden increase in demand.
- It won't affect their education or training.
- They're supervised by an adult to oversee their Health & Safety.
If this situation occurs in your workplace, ensure the young person is given compensatory rest. This must be a rest period of the same length as the extended shift they have worked.
Get expert advice on night work from Peninsula UK
You must provide staff working night time shifts with their statutory entitlements. This includes providing the right rest breaks, rest periods, and working hours.
Failure to comply with these laws can result in severe consequences. For example, the Health and Safety Executive may choose to investigate your business, which could result in financial and reputational damages.
Peninsula offers expert advice on night shift workers. Our teams provide 24/7 HR advice which is available 365 days a year. We take care of everything when you work with our HR experts.
Want to find out more? Contact us on 0800 028 2420 and book a free consultation with an HR consultant today.
