Managing shift workers: how to avoid legal pitfalls

Many sectors of the UK economy rely heavily on shift working and in the UK, around four million people (14% of the total workforce) work outside of the standard Monday to Friday working week.   

There are many different types of shift patterns, including day or night shifts, split shifts and rotating shift schedules. The benefits of shift working are well known. Shift patterns deliver flexibility: employers can provide cover for up to 24 hours a day over seven days a week and staff can work in a way that allows them to accommodate other commitments such as looking after children or elderly relatives. Those workers who work unsocial hours often also receive pay premiums which enhance their take-home remuneration without having to work additional hours. 

But there are considerable downsides too. If poorly managed, shift working can damage workers’ health and their overall wellbeing. This can result in reduced productivity, poor morale and high staff turnover. It can also expose employers to employment claims.

What are the key issues to consider?

Some shift patterns can interfere with the body’s natural circadian rhythm and have been associated with increased health risks, including fatigue and sleep disorders, obesity, type 2 diabetes, heart disease, digestive ailments and mental ill-health problems (such as anxiety and depression). There is also some evidence which links shift work with an increased risk of cancer. 

Individual tolerance to shift work can alter with age, due to long-term health conditions and during pregnancy. A recent poll of 5,000 shift workers (by jobs site Breakroom and software provider Surfboard) reported that 68% feel that the number of hours they work or their work patterns are adversely affecting their physical or mental health.

Shift workers often have little or no control over their working patterns. A poll conducted by the Living Wage Foundation found that half of those working variable hours receive less than a week’s notice of their shifts, with 14% being given less than 24 hours’ notice. In turn, this can lead to stress and burnout.

The consequences for employers that fail to take steps to ameliorate these negative consequences are glaringly obvious. Staff are more likely to have to take time off due to illness, to suffer an accident at work, to exhibit signs of low mood and poor morale and to raise grievances about their working conditions. Employers may also have a higher-than-average turnover of staff. 

All these factors have a knock-on effect on being able to meet the demands of customers and service users, as well as increasing employers’ overall costs.

One other important issue that employers can overlook is the difficulty some people have working certain shift patterns and the legal risks that follow if they fail to take a flexible approach. For example, Jewish people who celebrate the Sabbath may not be able to work from sunset on Friday to sunset on Saturday and some Christians treat Sunday as a day of rest. Certain shift patterns can also affect women with childcaring or other caring responsibilities who are often unable to accommodate last- minute shift changes or to work at certain times. These types of issues can lead to indirect discrimination claims. Two recent cases demonstrate the difficulties.

Dobson v North Cumbria Integrated Care NHS Foundation Trust 

Mrs Dobson was a community nurse. She has three children, two of whom are disabled. Due to her childcare responsibilities, she had, for a number of years, worked only on Wednesdays and Thursdays each week. In 2016, her employer issued a new rostering policy and asked her to work flexibly to include working an occasional weekend no more than once a month. Mrs Dobson said that it was difficult for her to work flexibly and she was ultimately dismissed for refusing to accept the new working pattern.

Ordinarily in these sorts of cases, the claimant has to adduce evidence to explain why they are disadvantaged by a policy that, on the face of it, appears to be neutral. However, in this case, the Employment Appeal Tribunal (EAT) said that Mrs Dobson did not need to do this because it accepted that women still bear the greater burden of childcare responsibilities and this can limit their ability to work certain hours. It referred to this as the ‘childcare disparity’ and made it clear that tribunals must take it into account in some situations (discussed below).

Allen v Primark 

Miss Allen worked as a department manager for Primark. Her contract required her to guarantee that she could work late each Thursday. After taking maternity leave, she applied to change her working hours because she could not meet that requirement as she was bringing up her child alone and had limited help from her family.

Primark said that it could not accommodate her request because only one of its other managers could work an additional late shift and that would impair its ability to meet customer demands. Also, if Miss Allen did not work late on Thursdays, the store would be without cover when he was absent. It did, however, suggest an alternative working pattern which meant that Miss Allen would only have to work a late shift when another manager could not. However, this did not solve Miss Allen’s childcare problems and she turned it down. She resigned and argued that she had been constructively dismissed and had suffered indirect sex discrimination.

The tribunal rejected her claim on the basis that there were three people in the store who could not work Thursday evenings and two were men. However, following her appeal, the EAT made it clear that the tribunal had not properly considered who should be included in the pool for comparison and asked the tribunal to look at it again. It was wrong to include the two men because they were not in the same position as Miss Allen: their contracts gave them the right to turn down working late on Thursdays.

Will employers face an increased risk of sex discrimination claims from women who cannot work certain shift patterns?

We are likely to see more women rely on the ‘childcare disparity’ to argue that requiring them to work some shifts indirectly discriminates against them because of their sex. This is likely to be particularly relevant where women are asked to work unpredictable hours or hours outside the standard working day, such as twilight or night shifts. The EAT made it clear that this type of policy can still result in disadvantage even when a woman can comply with it with difficulty and the employer can give her a decent amount of notice.

However, even where the childcare disparity is accepted, this does not mean a tribunal will find that a particular policy does, in fact, discriminate against women. For example, an obligation to work flexibly might require working any period of eight hours within a fixed window or involve some other arrangement that might not necessarily be more difficult for those with childcare or other caring responsibilities. In this case, it would be open to a tribunal to conclude that the group disadvantage is not made out.

Employers may also be able to justify asking all staff to comply with certain shift patterns provided they can demonstrate that:

• they have a legitimate aim for imposing the policy (which should not be too difficult); and
• the policy was proportionate.

Generally, if there is a less discriminatory way of achieving the same aim, the employer will be expected to take that route. 

What other legal duties should employers be aware of? 

There are a number of minimum employment law protections afforded to all workers, including shift workers, which include the following.

Rest 

Under the Working Time Regulations 1998, employers are required to give a minimum amount of rest to workers including:

• a daily rest period of 11 hours’ uninterrupted rest per day.
• a weekly rest period of 24 hours’ uninterrupted rest per week or, at the employer’s choice, 48 hours per fortnight; and
• a rest break of 20 minutes when a day’s working time is more than six hours.

The daily and weekly rest provisions do not apply to shift workers who change shift and cannot take a rest period between the end of one shift and the start of the next, or who work split shifts. Such workers are entitled to ‘compensatory rest’ – a rest break of the same length of time as the break (or part of it) that they have missed.

There are also limits on night working. A night worker (defined as a worker who works at least three hours between 11pm and 6am) must not work more than an average of eight hours per day. Workers cannot opt out of this but employers may make a collective or workforce agreement with unions or employee representatives to modify or exclude these limits. Under the WTR, night workers have a right to receive free health assessments.

Risk assessments 

There is no specific health and safety legislation on shift working. However, employers must comply with the general requirement to protect the health, safety and welfare at work of all of their workers and ensure, as far as is reasonably practicable, that they are not exposed to health and safety risks. For employers of shift workers, this will include considering the following factors and removing or controlling the risks to minimise fatigue:

• workload;
• work activity;
• shift timing and duration;
• the direction of shift rotation (it is better for the shifts to run in a forward rotation, ie morning to afternoon to night); and
• the number and length of breaks within a shift and rest periods between shifts.

Employers will also need to determine which workers face greater risks because of their age or any medical conditions.

Discrimination 

Employers are under a duty to avoid discrimination. As well as the risks of indirect discrimination discussed above, they will have to consider what adjustments to make for any worker who has a disability and cannot comply with the shift patterns.

Flexible working requests 

Employees (but not the wider category of workers) who have worked for the same employer for 26 weeks or more have a statutory right to ask their employer to change their working hours or shifts. Employees can turn down a request on one of eight business grounds and must respond within a specified period of time.

Potential legal changes 

In the first Queen’s Speech of Boris Johnson’s government, the government committed to introduce an Employment Bill to ‘protect and enhance’ worker rights. It said it would include a new right for workers with variable hours (including those on zero-hours contracts) to request a more stable and predictable contract after 26 weeks’ service. That could make a difference to some shift workers. There was also a a consultation in mid-2019 on 'one sided flexibility' which included proposals to give shift workers reasonable notice of their allocated shifts, compensation if their shifts were cancelled at short notice and extra protection against being penalised for refusing to accept shifts last minute. However, the government has not progressed these proposals and it is not clear whether it will make any significant changes before the next election.

Practical tips for getting the best out of shift workers

1. People vary in the way they adjust to and cope with shift work. There is no single shift pattern that will suit everyone. Consider how to accommodate workers who prefer to work specific shifts and, for those on a rota, how you can give them sufficient notice so that they can plan ahead and accommodate any additional commitments.

2. Recognise that workers who are scheduled to work five or more consecutive days are likely to be become fatigued quickly – particularly if they have recently changed shift pattern. To ensure that staff are not working excessive hours, put systems in place to monitor anyone working additional hours via compulsory or voluntary overtime or by covering shifts for colleagues.

3. When rotating between night and day shifts, rotate shifts quicky if possible (eg every two to three days) or slowly (eg every three to four weeks), as this limits disruption to the internal body clock. Guidance from the Health and Safety Executive (HSE) indicates that weekly and fortnightly shifts are the most disruptive to the body clock and should be avoided wherever possible.

4. Consider the length of shifts. The HSE recommends that eight-hour shifts are the ‘optimum length’ for sustained and consistent work. However, these may be less popular because there are fewer work-free days per week than working 12-hour shifts. Perhaps you can operate a more flexible arrangement so that those workers who are fit and willing to do so can work longer hours over fewer days.

5. Review the type of work and workloads of staff working nights. Whenever possible, try and avoid staff undertaking demanding or safety-critical work during the night. If this is not possible, consider whether to increase supervision or allow slightly longer breaks.

6. Encourage workers to take responsibility for their own health and wellbeing both in and out of the workplace. Provide training and information to highlight the potential risks of shift working and how to manage these. Encourage workers to report any issues and concerns at work to management or HR promptly.

7. Provide spaces where staff can eat (and store food) and take rest breaks away from their workstation or desk.

8. Encourage staff to take a holiday at regular intervals rather than using it in one or two blocks.

9. Undertake specific risk assessments for staff with medical conditions and those who are pregnant and make any changes that are necessary to protect them.

10. Avoid rejecting requests to work flexibly (by changing shift patterns) out of hand. Start with the objective of trying to accommodate the request. If you cannot, consider any other alternatives that might work and suggest these to the employee.

This article was first published in the July edition of the Employment Law Journal under the title 'Working Patterns: Shifting priorities' and is published with their kind permission. 

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