This week Joanne Archer, Senior Solicitor at Clarkslegal LLP and Helen Badger, employment law expert, Browne Jacobson present their ideas on how to manage health obligations in relation to night shift workers.
The question:
“We have three employees who are outsourced, and they work a nightshift of 7:30pm – 7:40am. We have not provided them with a free health assessment despite them requesting one, over 12 months ago. What is our liability here?”
The answers:
Joanne Archer, Senior Solicitor at Clarkslegal LLP
By way of background, Regulation 7 (1) of the Working Time Regulations 1998 (“the Regulation”) provides that an employer must ensure that the worker has the opportunity of a free health assessment. The DTI guidance is that health assessments should be given on a yearly basis.
There is a requirement to maintain and retain records for two years evidencing compliance with this Regulation.
The result of failing to comply with this Regulation (and the failure to maintain records) is twofold. In the first instance, the relevant authority (this depends on the nature of the work carried out by the company) can prosecute the company for breach of the Regulation, which can result in an unlimited fine.
Secondly, whilst the employees cannot bring a claim for failure to carry out the assessment itself, by failing to do so the company is potentially exposing itself to other claims.
The purpose of the medical assessment is to determine whether the employee is suffering from health problems connected to night working. If they are, there is a requirement to transfer the employee to other work.
If the company is not aware of any problems as a result of the failure to carry out the assessment, the company is potentially exposed to both claims for personal injury and disability discrimination. In both cases the compensation awarded is not subject to any maximum limits.
By way of information, the assessment does not have to be in the form of a full medical. You could ask the employees to complete a questionnaire which asks about health issues which are relevant to the particular type of night work. Only if you are then unsure about their fitness to work at night do you need to ask them to undergo a full medical.
Helen Badger, employment law expert, Browne Jacobson
Under the Working Time Regulations 1998, night workers must be given the opportunity to undergo a free health assessment before commencing night work and at regular intervals after that.
A health assessment can be made up of two parts: a questionnaire and a medical examination. The latter is only necessary if the employer has doubts about the worker’s fitness for nightshifts.
Responsibility for enforcing the WTR lies with the Health & Safety Executive, whose powers range from issuing Improvements Notices to the withdrawal of licences.
In this case, if the matter were reported to the HSE by one of the workers, the likely outcome would be an Improvement Notice. This would contain a statement that in the opinion of an Inspector, an offence has been committed, and give the employer an opportunity to rectify.
In addition, failure to offer a health assessment, particularly where one has been requested, could amount to a breach of the workers’ terms and conditions, entitling them to treat themselves as dismissed. This could be followed by a claim of constructive dismissal before the Employment Tribunal.
There is also the potential for a personal injury action if a night worker suffers from a condition aggravated by night work which would have been spotted by a health assessment.
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HRZone highly recommends that any answers are taken as a starting point for guidance only.
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