Notify Technology | Sep 24, 2019 | Blog

Over-tired? What’s the legal stance?

What’s the legal stance

In his latest column, our Subject Matter Expert, Tris Meears-White, takes a look at fatigue, sharing his own personal thoughts and experiences and the standpoint of the law regarding it.

Lord above, I’m knackered. I’ve only just come back from holiday and one week back in the office has already wiped out all residual benefits of the sun-lounger. I don’t operate dangerous machinery (although the steamer on our old coffee machine is a bit erratic these days…) but I’m very conscious of the extra care I need to take when I’m tired and driving. I can often be on the road for six or seven hours going to and fro between clients – who seem to deliberately choose site locations as far away as is humanly possible from all public transport links.

However, there is no doubt that worker fatigue has been a factor in some of the highest-profile accidents ever – Herald of Free Enterprise and the Hatfield Rail Disaster for example. So it is an issue that has to be taken very seriously.

If you’re operating in high hazard industries, then you will already know how important it is to risk assess and manage the likelihood and impact of fatigue on what you do – it’s often a fundamental part of an operator’s statutory safety case or licence conditions. Some sectors like rail and air have their own sets of regulations and guidance dealing with managing fatigue – unsurprising given the level of focus needed for the sorts of repetitive, probably pretty tedious – but safety-critical tasks that pilots and drivers need to do over long shifts.

The law says that employers must assess the risks arising from their activities/workplace to ensure exposure to fatigue is reduced, ‘as far as is reasonably practicable’ and that appropriate limits are placed on the amount of hours employees work.

By way of example – for shift workers, it’s possible to opt out of the 48-hour week under the Working Time Regulations (“WTR”), and for individuals to apply to do overtime to up their earnings. This applies not just to those within the industries already referenced, but across many other sectors including health and social care, retail, security and the emergency services.

HSE has guidance on shift work (HSG256) which makes it clear that complying with the WTR will not on its own be enough to ensure adequate protection of workers from fatigue – employers need to do more to demonstrate that this area of risk is controlled.

The length of shifts; number of consecutive working days; frequency of shift pattern changes and rest periods – all need to be considered when organising working patterns to ensure that employees get enough rest and opportunity to sleep.

Fatigue is also related to a number of recognised medical condition and treatments (e.g. conditions like MS, ME, fibromyalgia etc. and several pain, allergy and anti-depressant medications) and can be more difficult to manage, as unlike ordinary tiredness, it is unlikely to be alleviated by sleep alone; and unlike shift work, it is not just a case of shift and resource planning.

A lot depends on communication between employers and their people – if employers are told about such conditions/treatments, they then need to think about what reasonable adjustments can be made so that the employee is treated fairly and is protected from any further risk to their health or safety and that while they are at work, fatigue is managed as carefully as it can be. Examples of reasonable adjustments might include flexible working patterns; reduced hours/workload; home working or more frequent/longer breaks. Worth remembering that symptoms can be brought on or made worse by the workplace environment so temperature, lighting etc can come into play.

If a relevant employee operates heavy machinery or drives as part of their role then details of the side effects of any medication they are prescribed with will need to be sought and a risk assessment carried out to see whether they potentially impact on the safe performance of any task. I stress again – communication is key.

HSG256 sets out principles and approaches for managing fatigue including tables setting out how different elements of a shift-work schedule and/or workplace environment might contribute to fatigue. It also sets out advice on how to manage those risks, describing several good practice guidelines. You can interchange “shift” with “working day” to extend the principles into other types of work – HSE’s top tips include the following:

HSE have caught up with more specialist regulators (e.g. ORR – Office of Rail and Road) and is increasingly alive to “fatigue risk and impact” and willing and able to serve enforcement notices where they see this risk not being managed effectively – especially in higher hazard industries.

As someone who drives a lot for work and is invariably sleep-deprived, I’m particularly alive to the need for employers to address the risk of fatigue for any workers who are at risk of driving to/from or as part of their work whilst fatigued – the statistics on RTAs consistently point to fatigue as a causative factor.

The bottom line is that employers must be proactive and be vigilant for signs of fatigue in workers wherever that risk might come from and as ever, do “all that is reasonably practicable” to manage this risk.


This blog was written by Tristan Meears-White, Notify’s resident Subject Matter Expert. Tris is a Health and Safety lawyer hailed as a “key individual” by Chambers UK and a “first-class health and safety lawyer” by Legal 500 2018/2019.

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