Working Time Regulations 1998. SI 1998 No.1833 - Health Aspects 1 IntroductionThe opinions expressed in this document are those of the author, a specialist in occupational medicine and former member of the HSE. The reader may wish to refer to legal or human resources experts for additional information. Section 2 is adapted from the DTI website: http://www.dti.gov.uk/er/work_time_regs/index.htm and some text has been underlined for emphasis. In all cases the Regulations have been paraphrased and the exact wording will be found in the Statutory Instrument; http://www.hmso.gov.uk/si/si1998/19981833.htm . Specific comments appear in boxes 2 Summary of Regulations2.1 Purpose of the RegulationsThe Regulations will implement the EC Working Time Directive (93/104/EC) and the EC Young Workers Directive (94/33/EC) as far as it relates to adolescents. 2.2 CoverageThe Regulations apply to workers over the minimum school leaving age.
The definition of a worker covers those with a contract of employment plus a wider group who undertake work under other forms of contract (e.g. agency and temporary workers, freelance etc) but does not cover the self-employed. The Regulations exclude skilled workers involved in the following activities or sectors of activity: transport; sea fishing, or other work at sea; and doctors in training. It also excludes certain activities of the armed forces, police and civil protection services. There are some special provisions which relate to adolescent (young) workers, these are workers who are over the minimum school leaving age (15) but under 18. 2.3 Weekly working hours limits
The Regulations will set a working time limit of an average of 48 hours per week. The standard averaging period is 17 weeks, but can be extended to 26 weeks if the workers are covered by one of the "exceptions" or up to 52 weeks by an agreement between employers and workers.
Individuals can voluntarily agree to disapply the weekly working hours limits. Where workers choose to do this, employers are required to maintain records of the hours they have worked. 2.4 Measures relating to night time working.
Night workers are subject to a working time limit of an average of eight hours in each 24 hour period. The standard averaging period is again 17 weeks but can be extended by one of the "exceptions" or by agreement between employers and workers.
Night workers whose work involves special hazards or heavy physical or mental strain are subject to an eight hour limit for each 24 hour period.
Adult night workers are entitled to health assessments (an adolescent worker to a health and capacities assessment) before being required to perform night work and periodically thereafter. 2.5 Rest breaks and periods
Adult workers will be entitled to one day off each week (Reg 11). Adolescent workers are entitled to two days off (11(3)). Adult workers will be entitled to 11 hours consecutive rest per day (10(1)). The adolescent workers are entitled to 12 hours consecutive rest per day (10(2)). Adult workers will be entitled to a minimum 20 minutes rest break if their working day is longer than six hours (12(3)). Adolescent workers are entitled to a minimum 30 minutes rest break if they work for longer than 4.5 hours (12(4)).
These provisions are subject to "exceptions" which provide flexibility in certain circumstances. 2.6 Paid annual leave
Workers will be entitled to three weeks paid annual leave (rising to four weeks in November 1999). For workers who have just started work with an employer, their entitlement does not arise until a 13 week qualifying period has been completed. 3 ExceptionsSelected examples. 3.1 Unmeasured working time
Covers workers whose working time is not measured or predetermined or can be determined by themselves. Examples of those that may fall into this category are managing executives and family workers. Effectively these workers will only be subject to the paid annual leave provisions. 3.2 Specified circumstances
Flexibility is on the basis that workers receive compensatory rest. The specified circumstances include security and surveillance activities, activities involving the need for continuity of service or production (such as dock worker, hospital services, the provision of utilities, civil protection services, agriculture, etc) and where there is a foreseeable surge of activity such as in tourism. 3.3 Force majeure
Unexpected and unpredictable occurrences beyond the employers control. 3.4 Employer/worker agreements
“Collective agreement” can be made with the independent trade union. "Work force agreements" can be made with workers where there is no recognised trade union. The workforce can either individually sign the agreement (where a firm employs 20 workers or less) or the work force can elect representatives to negotiate on their behalf. The Regulations provide a mechanism for representatives to be chosen. 4 Enforcement
The limits (e.g. the weekly working time and night work limits) and the health assessments in the Regulations will be enforced by the Health and Safety enforcing authorities i.e. the Health and Safety Executive and Local Authorities. The entitlements (e.g. the rest periods and breaks and the paid annual leave) will be enforced by Employment (industrial) Tribunals. 5 Health and the Working Time Regulations5.1 BackgroundShift work, long hours, night work and lack of rest breaks have been implicated in the causation of ill-health. However, there is limited medical evidence to show that any particular pattern of work actually causes illness. Research into the health problems associated with shift work, night work or long hours can be difficult for two main reasons 1. Workers who experience ill health because of these types of work may choose to leave and find alternative jobs and therefore fail to be included in studies. 2. Workers who choose shift work, night work or longer hours may be different to other workers in their personality or habits (smoking, drinking, caffeine, diet, and exercise) and this could account for ill-health rather than the work itself. Harrington published a review of shift workers and health in 1978[1] The main conclusions are reproduced in a later study by Waterhouse, Folkard and Minors[2] which reviewed the scientific literature between 1978 and 1990 on shift work, health and safety. The main conclusions, including those of Harrington are reproduced at Appendix 1. More recent studies comparing 8 hour shifts with 12 hour shifts (working the same total hours) suggested few differences in the way that they affected people. Another study showed no increase in the risk of death from ischaemic heart disease in manual shift workers compared with day workers. Research into the effects of long working hours (as opposed to shift work) on health and safety has been fairly limited. Some evidence exists to suggest that working in excess of 50 hours per week is associated with higher levels of heart disease and mental health disorders. However little is known of the effects on other body systems. Productivity and safety may also be adversely affected by working long hours. Despite the limitations of the medical evidence it is under the arrangements for the protection of workers health that the Working Time Directive and the Young Workers Directive have to be implemented by member states. 5.2 Where is health mentioned in the Regulations?Health is mentioned a number of times in the Regulations. Employers have to “take all reasonable steps, in keeping with the need to protect the health and safety of workers”, to ensure that weekly working hours limits are complied with (regulation 4(2)) and limits on night workers hours are complied with (Regulation (6(2)). Night workers must have the opportunity of a free health assessment (Regulation 7(1)). Rest breaks have to be given if the pattern of work places the employees’ health at risk (Regulation 8) 6 Interpretation of the RegulationsRegulation 2 provides a legal interpretation of a number of terms used elsewhere in the Regulations. The DTI have produced a guide to the Regulations[3]. The guide has the status of Official Guidance. Following the guidance is likely to result in compliance with the law. However the introduction states “The booklet explains how the Regulations work and how an employer may seek to comply with them…….The booklet gives only general guidance and should not be regarded as a complete or authoritative statement of the law”
Night-time means a seven hour period which includes the hours between midnight and 5am. The precise start and finish of "night-time" will be determined by a "relevant agreement" with the work force or, failing this, will be 11pm to 6am. 6.1 Night Workers
Night workers are those who, as a normal course, work at least three hours of their daily working time during "night-time". The Regulations state that "a person works hours as a normal course (without prejudice to the generality of that expression) if he works such hours on the majority of days on which he works". Night workers can also be defined as those who are likely to work more than a certain proportion of their annual hours during night time - as set out in a collective or workforce agreement. Therefore regulation 2 defines "normal course" as "the majority of days" which can be taken to mean 50 per cent or more of the total days worked. However, inclusion of "(without prejudice to the generality of that expression)" suggests that “normal course” could mean something other than "the majority". The DTI guide in section 3.1.3 it states "the worker may be said to work at night ‘as a normal course’ if they do so on a regular basis, for example on a rotating shift pattern that results in them working regularly during night time as opposed to an infrequent or ad-hoc basis". There is some doubt, therefore, as to whether a worker employed on a typical 6-2 2-10 10-6 three shift system would be counted as a night worker in the absence of a workforce agreement to that effect. The worker will only work during night-time on one-third of shifts (i.e. not the majority) but the night work will occur as a normal course. Extra night shifts worked as overtime would not count unless this happened as "a normal course". This and similar matters may be clarified in the courts.
Night workers have certain protections, enforced by HSE, not to work more than eight hours in 24 averaged over a reference period. The employer must take "all reasonable steps, in keeping with the need to protect the health and safety of workers, to ensure that this limit is complied with". Would it be a “reasonable step” to prevent the worker from attending for or completing his shift if the employer becomes aware that he has done a day shift in another employment? Or could it be ignored because such an action could not be shown to protect the workers health and safety?
Employers must ensure that no night worker employed by him whose work involves special hazards or heavy physical or mental strain is allowed to work more than eight hours in any 24-hour period during which the night worker performs night work. There is no provision for the employee to exempt himself from this rule, except under a workforce agreement (Regulation 23). The correct identification of night workers will be particularly important in these cases.
Special hazards and heavy physical or mental strain are anything defined as such in a collective or work force agreement OR work identified in the process of risk assessments under regulation 3 of the Management of Health and Safety at Work Regulations as involving a significant risk to health or safety. This is a misleading definition since the employer has a legal duty to eliminate or reduce those risks or protect employees from them, even in the absence of the Working Time Regulations. 6.2 Health Assessments
Employers have to ensure that workers have the “opportunity” of a free health assessment before taking up an assignment as a night worker and at "appropriate" regular intervals after that. For young workers their “capacities” will also be assessed. In the Regulations: The content of the health assessment is not specified. The practitioner performing the health assessment is not specified The purpose of the health assessment is not specified although it is implied later in regulation 7(5)(a) – see below. The frequency of the health assessment is not specified. The law does not specifically state or imply that the health assessment should be relevant to the particular (night) work being done. The law does not require that the outcome of the health assessment be communicated to the employer – though it does permit it (Reg. 7(5)(a) There is no requirement to tell the employee that he has the opportunity of a free health assessment, providing the opportunity exists. There is no requirement to offer a health assessment The employee is not obliged to participate in or attend for a health assessment.
In section 4.1 the DTI guide goes a lot further than the Regulations themselves: The guidance states: An employer must offer a health assessment The purpose of the health assessment is to determine fitness to carry out night work. The minimum procedure should be a screening questionnaire compiled with the help of a qualified health professional. Only properly trained people should interpret the information - (it does not specify a doctor or nurse, however the information obtained is likely to be medically confidential). The guide implies that, if the screening questionnaire indicates it is necessary, then a formal assessment will be conducted by the employers own occupational health service or a general practitioner or external providers of occupational health services. A simple fitness for work statement should be provided by the health care professionals to the employer. Regular intervals are not defined but annual is "a rule of thumb" If the purpose of the health assessment is to assess an individual's fitness to perform night work for the purpose of protecting his or her health then the fact that the health assessment is optional is inconsistent with other similar health assessments carried out under health and safety legislation. One possible exception is the eye test offered under the Display Screen Equipment Regulations
The only disclosure to be made as a result of a free health assessment is that the worker is fit to take up or continue the assignment, unless consent is given to other disclosure. This
implies that the health assessment is an assessment of fitness to
work. In order to avoid breaking the law in the case of night worker health assessments the practitioner might decline to certify the individual as fit, rather than saying they were unfit. In reality it is likely that occupational health practitioners will continue with the recognised practice of advising an employer whether an individual is fit OR unfit for a particular job (night work or otherwise) while protecting all confidential information unless consent is given for its release. 6.3 Transfer to other work
If a doctor advises the employer that a workers health problems are connected with night work then the worker must be transferred to other work so he ceases to be a night worker. But this need only occur if the worker is suited to the work and it is possible to transfer him. (Enforced by HSE/LA) This can be any doctor, not just the company doctor and the advice can be given in any way - not necessarily in writing. "Health problem" could conceivably be any symptom, not necessarily a specific diagnosis. The word "connected" is not defined and is much broader than "caused by" or "made worse by" If the employee told his doctor that he had more frequent headaches or heartburn or insomnia when he worked at night, and his GP advised the employer of this then a duty under regulation 7(6) to transfer to other suitable work would arise. The duty can be ignored if it is not "possible" to transfer or if the worker is not “suited” to the alternative duties. Once the employer has been advised of a "connection" between a health problem and night work then the employee must be transferred to suitable non- night work if it is possible. This is a protection not a right and cannot be waived by the employee. 6.4 Rest breaks from work with health risks
Where work is organised in a pattern that places an employee’s health and safety at risk (particularly monotonous or pre-determined rate) then adequate rest breaks should be given. Other legislation would require that risks arising from the pattern of work be eliminated or controlled. 6.5 Records of Health Assessments
Employers must make records to show that the requirements in regulation 7(1) and (2) are being complied with and keep records for two years from the date when they were made. (Also applies to 4(1) and 6(1) and (7)). 7 Recommendations for health assessmentsEmployers with existing occupational health arrangements (having regular contact with an occupational health nurse or doctor) should have no difficulty complying with these regulations because all of their employees have the opportunity of a free health assessment. In order to comply with the spirit of the DTI Guidance employers may wish to publicise their arrangements to the workforce collectively but an offer to each employee on an individual basis is not a legal requirement. Rather than looking at night work specifically a broader approach to assessment of fitness for work is advocated to ensure that all employees are fit and safe to carry out their duties. Special arrangements for night workers should not be required. This can be considered to be compliance with Section 2 of the Health and Safety at Work Act and would have the effect of complying with Regulations 6 and 7 of the Working Time Regulations. All employees should have a health assessment pre employment and before transfer. The type and content of the assessment will depend on the type of work to be done and the health risks. Occupational health doctors and nurses can assist with the development of company policy. Further assessment may be required at intervals to check that employees are fit for specific duties, for example driving, or to ensure that work is not harming their health, for example hearing tests. Normally a general questionnaire should be in use at the pre employment and pre transfer stage with interpretation by an occupational health nurse or doctor and subsequent more detailed assessments where considered necessary - the employees duties would be taken into account. Checks should be made to ensure that the general questionnaire is suitable to detect significant medical conditions that may be relevant to a range of jobs, including those that involve night work. The employer needs to be advised whether the individual is fit for their duties and what (if any) restrictions apply. If the above system is in place then all employees can be assessed prior to commencing their duties, including night work. 8 SummaryThe Regulations are intended for the protection of workers health. Medical evidence to show that longer hours, night work or shift work adversely affect health is limited and difficult to interpret. The Department of Trade and industry guidance goes beyond the legal requirements of the Regulations. Employers can choose to comply in other ways. The term night worker is ambiguous and the Regulations may have to be tested in the courts – if any enforcement action should arise. Health Assessments for night workers should form part of the normal pre employment, pre transfer and periodic medical assessment programme. Any employer with existing arrangements for occupational health provision can fairly claim that all employees have the opportunity of a free health assessment at any time. Employees or managers who have concerns about fitness for work can seek the advice of the occupational health doctor or nurse. Employers with no provision should ask a suitably qualified doctor or nurse to review their occupational health needs.
D Shackleton MB ChB MRCP MFOM January 1999
NB: Heading numbering relates to the original report[2]. Background and Introduction In his review of shift work and health, Harrington (1978) drew the following broad conclusions: i There was, on balance, no evidence for an increased mortality in shift workers, nor for an increased incidence of cardiovascular and neurological disorders; by contrast, chronic fatigue, gastric and duodenal ulcers were more common. The results for absenteeism were extremely difficult to interpret. ii Repetitive tasks, associated with low motivation and fatigue, were performed less well. at night, but tasks which were more interesting and required more mental effort on the part of the individual suffered less at night. Any link that might exist between poor performance and accidents did not extend to a clear relationship between time of day and accidents. iii Differences between workers existed in their response to shift work and tolerance of it; Harrington suggested that 10% of shift workers enjoyed night work, most accepted it and about 20% found it unpleasant enough to choose (or be forced by health considerations) to leave night work. This last sub-group, often called “drop outs”, seemed to suffer most from the ill effects of night work. iv There were many reasons for these differences in response between workers. They included differences in physiology, psychology and the social environment on the individual.
C. Shiftwork and Health
6. Mortality The main study of mortality (all causes) conducted in 1972 was interpreted to indicate that there was no increased mortality for current shift workers compared with the average for the population as a whole. However, the report did find an increased incidence amongst former shift workers as well as a greater incidence amongst current shift workers as compared to day workers; nowadays there would be a tendency to give increased stress to the latter findings. 7. Cardiovascular Disorders Harrington’s view that the evidence showing a link between shift work and an increase in cardiovascular disease was inconclusive. However, papers published since Harrington’s 1978 review have generally been more likely to find an increase in cardiovascular disorders, particularly in “former shift workers”. The evidence in favour of the view that shift work is associated with an increase in cardiovascular disease is now becoming more difficult to dismiss as inconclusive, than was the case in 1978. The possible causes are not yet clear. Possibilities include increase in body mass, blood pressure and smoking. 8. Digestive Disorders and Ulcers Further evidence has confirmed that shift workers have an increased incidence of these disorders. The causes of this are likely to be multiple, but diet, smoking, drinking alcohol and general stress have all been suggested, in addition to irregular meal times. The relative contribution of each factor remains to be determined. 9. Neurological Disorders There are comparatively few studies which do not suffer from major design defects, and which have considered these symptoms. Such studies provide evidence for a greater tendency towards general malaise - including anxiety and depression elements - in shift workers than in day working colleagues. It is unclear as to which physiological and biochemical change is produced by shift work are exacerbated by social factors in contributing to this result. It is worth remembering that about 10% of shift workers enjoy night work.
10. Sleep Loss This is accepted as a major problem for shift workers. Fatigue increases during the night shift and can be almost as marked on the morning shift. Decreased amounts of sleep have been shown repeatedly using results from questionnaires as well as from the objective assessment of sleep electroencephalographically. The reasons for sleep loss are often environmental and social, but laboratory based studies have indicated some physiological reasons also why such difficulties arise. It is not known if continual partial sleep deprivation is a cause of increased mortality and morbidity, though one large study suggests it might be. It seems advantageous to the shift worker to be able to catch up at least some of the lost sleep. 11.
Differences between individuals Differences appear to exist both initially and in the extent to which successful coping mechanisms are used by shift workers, though there is an interaction between these factors. Some of the differences are: age of the workers; whether the body clock is phased particularly earlier or later than average; the abilities to overcome feelings of drowsiness and to take naps when there is an opportunity. In addition, it appears to be particularly important that the individual reorganises his or her lifestyle so that the advantages of shift work, rather than its disadvantages, are stressed. Such coping mechanism involve a choice of priorities and affect the workers spouse, family and friends. 12.
Special Groups In addition to those disadvantaged by the factors considered in paragraph 11 above, it is generally suggested that certain groups of workers should be advised against shift work. These include: those on chronic medication where dose scheduling is critical; those with gastrointestinal or cardiovascular disorders; and people with epilepsy. It is also generally advised that from the fourth decade of life onwards, regular health checks should be available.
[1] Harrington, J.M. (1978) Shiftwork and Health. A Critical Review of the Literature. HMSO, London. [2] Waterhouse, J.M. Folkard, S. Minors, D.S. Health and Safety Executive contract research report 31/1992 "Shiftwork, Health and Safety - an overview of the of the scientific literature 1978 to 1990". [3] A Guide to the Working Time Regulations, Department of Trade and Industry. URN 98/894. Available free by telephoning 0845 6000 925.
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