The HSE has updated its ‘Operational circular’ (1/6) on the Working Time Regulations 1998. The guide is mainly for enforcers, but it is likely to be very useful to employers.

The HSE has traditionally kept a low profile on most aspects of working time (which in the UK has been seen as part of employment law or industrial relations). However, it has a role in enforcing arguably the most health and safety-oriented part of the Regulations covering night work, including high hazards and health assessment.

Night-time working

In general, a person is a ‘night worker’ if they work at least three hours during night time on the majority of days they work. The basic night work limits are:

• Adult workers: normal working hours must not exceed an average of eight hours in a 24-hour period. This is calculated over a reference period which is one of 17 weeks (26 weeks for doctors in training and 52 weeks for offshore workers) unless modified or excluded by a ‘relevant agreement’ (see ‘work involving special hazards’ below).
• Young workers: in general, young workers (below 18 years
but above the minimum school leaving age – generally around the sixteenth birthday) must not work between 10pm and 6am (the ‘restricted period’). This can be varied in a contract to between 11pm and 7am.

There are some exceptions.

However, night work limits may not apply where:

• the worker is engaged in security and surveillance activities and a permanent presence is required;
• there is a need for continuity of service or production e.g. health care; work at airports; media etc; utilities; industries in which work cannot be interrupted on technical grounds; research and development activities, the carriage of passengers on regular urban transport services;
• there is a foreseeable surge of activity;• the worker’s activities are affected by ‘unusual and unforeseeable circumstances’; or an accident or the imminent risk of an accident.

Work involving special hazards

Where the work involves special hazards, or heavy physical, or mental, strain, no night worker may work for more than eight hours in a 24-hour period, including overtime. The HSE points out that this is an absolute limit and is not subject to a reference period. Work falls into the ‘special hazards’ category if it is:

• identified as such in a relevant agreement that takes account of the specific effects and hazards of night work; or
• recognised by a risk assessment as involving a significant risk to the health and safety of the workers.

HSE notes that since “special hazards” is not defined in the Working Time Regulations (or the Working Time Directive) the term should be considered to be equivalent to ‘significant risk’.

Health assessment and transfer to day work

Regulation 7 requires an employer to offer a free health assessment to any employee who is to become a night worker (unless a previous assessment is valid) and to provide the opportunity for further assessments at regular intervals. As a minimum, employers could construct a screening questionnaire compiled with guidance from a qualified health care professional. Significantly, workers do not have to take up the offer of the assessment.

Regulation 7 also requires an employer to offer a free health and capacities assessment to any young worker assigned to work between 10pm and 6am (unless a previous assessment is still valid) and to give such workers the opportunity for further assessments at regular intervals. All young workers retain this right (and because of their age and the possible extra risk, employers are advised to ensure they receive this assessment, Ed).

The health and capacities assessment takes into account such things as physique, maturity, experience and competence to undertake the night work. Regulation 7 does not apply where the work is of an ‘exceptional nature’ (an example may be where no reasonable alternative exists and a young worker has to cover for an ill adult).

Finally, employers also have a duty to transfer a night worker from night work, where possible, if a medical practitioner has advised that the worker is suffering health problems considered by the practitioner to be connected with night work.

Note that the original Working Time Regulations have already been amended half a dozen times. Notably (from a health and safety point of view):

• The Working Time (Amendment) Regulations 2002: introduced changes to implement elements of the Young Workers Directive.
• The Working Time (Amendment) Regulations 2003: introduced changes to implement some previously excluded sectors and activities.
• The Working Time (Amendment) Regulations 2006: Revoked an exemption from maximum weekly working time limits and length of night work where a worker’s working time was partly unmeasured or determined by the worker.

The updated HSE guidance on working time is at: www.hse.gov.uk/foi/internalops/fod/oc/001-099/1-6.htm

UK vying for most working hours in Europe

Meanwhile, a report from Eurofound (the European Foundation for the Improvement of Living and Working Conditions) suggests that full-time employees in the UK put in 41.4 hours per week on average. This is about one hour and 24 minutes more than the average for all EU countries – including the 12 new Eastern European countries and nearly two hours more than the average for the old 15 Western European EU members. The average trade union agreement in the UK is reported to be around four hours a week less, at 37.3 hours.

The report is at: www.eurofound.europa.eu/press/releases/2008/080903.htm

Monitor comments

The overall safety credentials of the Working Time Directive are tested when one considers that, to this day, it is the only general health and safety legislation that an employee can ‘opt out’ of. Although brought in as a health and safety Directive, in practice it has tended to be the somewhat jealous preserve of employment professionals.

The notable exception is night work, where safety professionals are sometimes allowed a peek at what is going on. Even so, the updated HSE guide provides a useful rendition of what the Regulations require overall.