Night work clause

Night workers are subject to special statutory rules set out in the Working Time Regulations 1998 and these are additional to the general working time rules. You can use our clause to vary some of these special statutory rules.

Night work defined

The Working Time Regulations 1998 provide that a “night worker” is a worker who works at least three hours of their daily working time during night time on the majority of the days on which they work, or otherwise as a normal course. So, it doesn’t include those who only work occasional nights or who work for less than three hours of their shift during night time. “Night time” is then defined as a period of not less than seven hours which includes the period between midnight and 5am. If there’s no relevant agreement in place which sets the hours, it will be deemed to be the period between 11pm and 6am. A relevant agreement includes a written employment contract. So, our Night Work Clause starts by providing for night work to mean work either between 10pm and 5am, or between midnight and 7am. These would be two potential alternatives to the default of 11pm to 6am. The seven hours doesn’t need to be at round times though, so you could, for example, provide for it to be 10:30pm to 5:30am, depending on what suits the needs of your business.

Night work limits

The regulations state that a night worker’s normal hours of work must not exceed an average of eight hours in each 24-hour period. They go on to say that you must take all reasonable steps, in keeping with the need to protect the health and safety of workers, to ensure you comply with this limit in relation to each night worker that you employ. To calculate a night worker’s average hours, you must divide the number of their normal working hours during the relevant reference period by the number of days in that reference period, after subtracting the 24 hours’ weekly rest periods. The reference periods which apply in the case of a night worker are either: (1) successive periods of 17 weeks, if that’s provided for in a relevant agreement; or (2) if there’s no relevant agreement, any rolling 17-week periods. Thus, as an alternative to the default position of the reference period being any 17-week period during the night worker’s employment, our clause provides for successive (i.e. consecutive) 17-week reference periods starting from the commencement of their employment. If they’ve worked for less than 17 weeks, the reference period will be the period that has elapsed since they started work.

Special types of night work

Where a night worker’s work involves special hazards or heavy physical or mental strain, there’s an absolute limit of eight hours’ work in any 24-hour period, and no averaging is permitted. Work falls into this category if it’s either identified as such in a collective or workforce agreement, or it’s recognised in your risk assessment as involving a significant risk to the health and safety of your workers.