Employers must not overreact to night shift breast cancer scare, warns lawyer

Denmark's Board of Industrial Injuries has awarded 37 women compensation after ruling that the only significant factor in their development of breast cancer was 20 to 30 years of night shift work.

Employers faced with potential liabilities might consider reducing women's exposure by keeping them off night shifts, but this could leave companies open to sex discrimination actions, according to Dr Simon Joyston-Bechal, a health and safety law expert at Pinsent Masons, the law firm behind OUT-LAW.COM.

"If your response to this as an employer is to say that night shift work should only be available to men, then you will probably get into trouble over sex discrimination laws," he said.

"That will be a particular problem if night shifts are paid better than day shifts, because then it could be said that you are reserving the best-paid jobs for men," he said.

The Danish government began assessing claims arising from night shifts and breast cancer after research in 2007 suggested that working nights over a period of many years could lead to the illness.

Last year the board of Industrial Injuries received 75 claims for compensation over supposedly night shift-induced breast cancer and has now ruled that in 37 of those cases there was nothing else that could have caused the illness.

Joyston-Bechal said that employers should investigate the link before deciding on a course of action.

"If you are an employer with female night shift workers, you should be finding out more about how serious a risk this might be," he said. "It may be that there are things you could do to reduce the risk, such as changing the length of shifts. Perhaps it would be enough to put in an appropriate screening programme for women working night shifts."

"The key thing for an employer is to conduct a review of their risk assessment for the health effects of night shift working," said Joyston-Bechal. "If employers have never done one before, they should do one now. If they have done one before, they should be reviewing it in light of this news."

"The preferred selection of men for night shifts over women could breach employment laws even if it is done to protect the women," he said. But he also said that courts might find that this is a reasonable adjustment to make to ensure safety.

"Ultimately health and safety laws tend to trump employment laws. If you were to have a job that could only be done safely by men and you said only men would be hired then that might be seen as a good enough reason for it," he said. "I don't believe the evidence has yet reached the point that women should be barred from night work. Nonetheless, the implications for society could be enormous. Imagine if hospitals couldn't employ female nurses at night."

Night shift work has been shown to cause disturbed sleep, tiredness and other health problems. Some studies have reportedly shown that people who have disturbed sleep produce less melatonin, which can help to prevent cancer.

To find out how Pinsent Masons can assist your organisation with safety reviews, email [email protected] or [email protected].