Night Work Rights

You are a night worker under the Working Time Regulations 1998 if you work at least three hours of your daily working time during the night period — defined as midnight to 5am (or a different seven-hour period including midnight to 5am, as specified in a relevant agreement). In practice, the most common definition of night hours is 11pm to 6am.

You are a night worker if working at night is normal for you — meaning you work nights on a regular basis, not just occasionally. A worker who occasionally covers a night shift is not automatically a night worker for the purposes of these Regulations.

Night workers have specific additional protections on top of the general working time rights that apply to all workers — notably the eight-hour nightly limit and the health assessment entitlement.

Night workers cannot work more than an average of eight hours in each 24-hour period, calculated over a 17-week reference period. This is separate from the general 48-hour weekly average limit and is specifically for night work.

Unlike the 48-hour weekly limit, the eight-hour night work limit cannot be opted out of by an individual worker. Even if you have signed a general opt-out from the 48-hour weekly limit, the eight-hour night work limit still applies.

Night workers doing work involving special hazards or heavy physical or mental strain must not exceed eight hours in any single 24-hour period — not just as an average. This stricter limit applies to work identified as hazardous by a collective agreement or workforce agreement, or by a risk assessment.

Night workers are entitled to a free health assessment before starting night work and at regular intervals thereafter. The assessment is designed to detect any health problems that may be caused or aggravated by night work. Your employer must offer one — you can choose whether to take up the offer.

The assessment is confidential. The employer should receive only a simple pass or fail — they should not receive details of your health conditions. If you are asked to complete a health questionnaire or see an occupational health professional, your medical information is protected.

If night work is found to be damaging your health, your employer is required to offer you suitable day work where possible. If no suitable day work is available, you cannot simply be dismissed because you can no longer work nights — your employer should explore other options first.

Employers must offer free health assessments to night workers before they start night work and at regular intervals afterwards (usually annually). If a health professional advises that a night worker is suffering from health problems connected to night work, the employer must transfer them to suitable day work if available. Refusing a health assessment does not remove the employer's obligation to offer one.

Night workers must not work more than an average of 8 hours in each 24-hour period, calculated over a 17-week reference period. For work involving special hazards or heavy physical or mental strain, the limit is an absolute 8 hours in any 24-hour period with no averaging. Employers who fail to comply face HSE enforcement action and potential criminal prosecution under the Working Time Regulations 1998.

For night workers who have a disability or a health condition, the interplay between the Working Time Regulations 1998 and the Equality Act 2010 is particularly important. If night working is exacerbating a disability — whether a physical condition such as chronic pain or a mental health condition such as anxiety or depression — your employer has a duty to consider reasonable adjustments that could reduce the disadvantage.

Reasonable adjustments in the context of night work might include:

• Transferring you to day shifts on a permanent or temporary basis
• Modifying your shift pattern to reduce the frequency or duration of nights
• Providing additional rest breaks during night shifts
• Allowing you to work from home for part of the night shift if operationally feasible

Your employer cannot simply refuse to consider adjustments because moving you to day work would be inconvenient. The duty to make reasonable adjustments is proactive — your employer must think about what steps could remove or reduce the disadvantage once they know, or could reasonably be expected to know, that night work is adversely affecting your health.

If your health assessment identifies a problem and your employer does nothing, this may be both a breach of the Working Time Regulations (failure to transfer to suitable day work where available) and disability discrimination (failure to make reasonable adjustments). You can raise both issues through your employer's grievance procedure and, if unresolved, through the Employment Tribunal. Always contact Acas for Early Conciliation before lodging a claim — the time limit is three months less one day from the act of discrimination or the failure to comply with the Regulations.

Night workers are also entitled to the same holiday pay as day workers. If your shift patterns mean your normal remuneration includes regular night shift premiums or unsocial hours allowances, these must be factored into your holiday pay calculation. Your holiday pay should reflect your average normal pay — including the night shift premium — over a 52-week reference period, not merely your basic hourly rate. If your employer has been calculating holiday pay based on basic pay alone (excluding the night premium), you may have a claim for underpaid holiday pay going back up to two years under the Employment Rights Act 1996.

Night workers considering parental or carer responsibilities should also be aware that the Carer's Leave Act 2023 (in force April 2024) and flexible working provisions under the Employment Relations (Flexible Working) Act 2023 both apply to night workers. If a caring responsibility arises — for example, a change in a dependent's needs — night workers can make a flexible working request for a change to day shifts from day one of employment. The employer must follow a fair process and can only refuse on one of the eight statutory grounds. Refusal without following the correct process can give rise to an Employment Tribunal claim. This right exists independently of the night work health assessment route and is often the more straightforward route for permanent shift changes.