What impact will this have on employers in the UK?
The UK government does not provide a similar state compensation fund. Until it does, employees will have to pursue claims against their employers.
The Danish decision has absolutely 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. But a forthcoming Health and Safety Executive epidemiologist report was commissioned to deal with this issue. We await its findings.
Exposure at work
If such a link is found to exist, then employees will have to bring claims similar to those where workers have suffered disease or illness following exposure at work to noxious substances, such as asbestos.
Over the past 10 years, the civil courts have seen an increase in compensation claims for industrial disease, instigated by employees who have developed asbestos related diseases. These claims are being brought against former employers of up to 20 years ago or more (or often their insurer). Although the dangers of working with asbestos were known as early as the 1960s, some employers did little to protect their employees.
These industrial disease claimants have been successful because their employer should have known about the risks to employees’ health that asbestos posed, but took no action to prevent or reduce employee exposure. 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 for negligence or breach of statutory duties.
Similarly, if the courts conclude that it is a reasonably foreseeable risk that making employees work night shifts may cause cancer, and the employer continues to subject its staff to that risk, they too may find themselves liable for 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 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 the cause of any damage. 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.
Compensation claims rest on the question of causation, which 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.
We are still a long way off the absolution of night shifts altogether and, if they are as dangerous as some fear, it could prove a serious problem for employers to which there will be no easy solution.
- Danish courts have awarded compensation to women who 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 make stringent health checks and comply with their duties under Health and Safety legislation.