As we have seen from recent press reports, the Danish government has awarded compensation to around 40 women who have developed breast cancer after working long spells of night shift.
 
Firstly, the UK government does not provide any such state compensation fund and until it does then employees will have to pursue claims against their employers. At present, the decision of the Dutch government has no impact on the British legal system.
 
It needs to be determined whether there is a medical link between developing cancer and working long hours and nightshifts. We can only welcome the forthcoming HSE epidemiologist report. which has been commissioned to deal with this issue.
 
If such a link is found to exist, then employees will have to bring claims similar to those which have been brought over the years where workers have suffered disease or illness following exposure at work to noxious substances such as asbestos.
 
Over the last 10 years, the civil courts have seen an increase in compensation claims for industrial disease, instigated by employees who have developed asbestos related diseases such as asbestosis, or in the worst cases Mesothelioma, a form of Cancer. These claims are being brought against former employers of up to 20 years ago or more (or often their insurer), as although the dangers of working with asbestos were known as early as the 1960s and 1970s, some employers did little to protect their employees from such dangers.
 
These industrial disease claimants have been successful because their employer knew, or ought to have known, about the risks to employees' health that asbestos (or indeed other harmful substances) posed, but took no action to prevent or reduce employee exposure to these harmful substances. If the risk of injury is reasonably foreseeable, and the employer takes no reasonable course of action to limit, minimise or remove the risk, then it is likely that they will be liable in negligence or breach of statutory duties.
 
Similarly, if the courts come to the conclusion that it is a reasonably foreseeable risk, given knowledge in the industry, that making employees work night shifts may cause cancer, yet the employer continues to subject its staff to that risk, then they too, may find themselves liable for any damage caused.
 
Employers have an obligation to take ‘reasonably practical' precautions towards the health of staff; they do not have a duty to eliminate all risks. As a starting point, employers should take practical steps to protect night shift staff, such as ensuring that there are regular shift patterns and/or split night shifts, minimising back-to-back night shifts which can result in disturbed sleep patterns.
 
When deciding whether an employee should be awarded compensation, the courts will need to consider expert medical evidence on whether working night shifts was in fact the cause of any damage. Claimants would have to rule out other possible causes and deal with external contributors such as an unhealthy lifestyle or family medical history. Employers are likely to defend such claims on the basis that they did not know and could not have known about the risks and this argument is likely to prevail.
 
As outlined at the start of this article, the question causation is a matter for medical evidence. Claimants may well struggle to establish a causal link between working night shifts and the onset of cancer, in which case their claims will fail.
 
Time and extensive medical research will tell whether a causal link exists between developing cancer and working long shifts. Until then, employers should ensure they carry out stringent health checks and comply with their duties under the comprehensive Health and Safety legislation in order to protect employees and minimise risks of liability.
 
We are a long way off the absolution of night shifts altogether and, if night shifts are as dangerous as some people fear, it could prove a serious problem for the modern business, to which there will be no easy solution.
 

• Danish Courts have awarded compensation to women who have developed breast cancer after working night shifts
• The HSE has commissioned an epidemiologist report on the issue
• Employers have an obligation to take ‘reasonably practical' precautions towards the health of staff; they do not have a duty to eliminate all risks
• Employers should carry out stringent health checks and comply with their duties under the comprehensive Health and Safety legislation