Injury to Feelings and the Working Time Regulations

The Court of Appeal has held that compensation for injury to feelings is not available for failing to provide rest breaks under the Working Time Regulations 1998 (‘WTR’).

Pursuant to Regulation 12 (1) of the WTR, workers are entitled to unpaid rest breaks of 20 minutes when working for more than 6 hours per day.

Whilst workers may be required to remain at work or in close proximity to their workplace while taking a rest break, they should not be required to perform any duties.

Where an employer has infringed a worker’s entitlements under the WTR, a worker is able to bring a claim to the Employment Tribunal.  An Employment Tribunal must make a declaration that the worker’s entitlements have been infringed and may make an award of compensation where the complaint is well-founded.

The amount of compensation is such as the Tribunal considers just and equitable in all the circumstances.

Injury to feelings awards have historically been made under discrimination legislation and have also been available in whistleblowing detriment claims. Conversely, compensation for unfair dismissal and breach of contract does not include compensation for injury to feelings.

For relevant claims presented on or after 6 April 2018, an injury to feelings award of £900 to £42,900 can be awarded. In exceptional circumstances, awards can exceed £42,900. An injury to feelings may or may not be taxable in full or in part.

The Court of Appeal in the case of Gomes -v- Higher Level Care Limited (2018) EWHC Civ 418 clarified that an award for injury to feelings may not be made for breach of Regulation 12 of the WTR.  Ms Gomes had appealed to the Court of Appeal arguing that the Employment Appeals Tribunal had been wrong as a matter of law. 

She submitted as follows:

• The Employment Tribunal had the power under domestic law to award compensation for injury to feelings where there had been a breach of Regulation 30(4);
• Domestic law had to be interpreted in a way which allowed a Tribunal to make such an award further to EU law obligations under Directive 2003/88. The extent of the matter was not clear, she asked for reference to be made to the ECJ for a preliminary ruling.

The Court of Appeal found that the Employment Appeals Tribunal was correct in its decision. There is no power in domestic law to award compensation for injury to feelings for breach of the WTR. Further, the Working Time Directive did not require such an interpretation.

This is an important judgment as it makes it clear that injury to feelings cannot be awarded in such cases, although employers should continue to be aware that the Employment Appeals Tribunal has held that injury to feelings could be awarded where an individual has suffered a detriment in employment, for example, having blown the whistle, health and safety and working time cases.

Injury to feelings awards can be substantial and employers should take advice at an early stage of any employment dispute.

MORE INFORMATION 

If you feel that you require further legal advice pertaining to the Working Time Regulations and your rights and responsibilities, as either an employee or employer, please do not hesitate to contact our Employment Department – our team of expert solicitors will be able to assist. Call on 01708 229444 or email us using our contact form.This article was written by Alexander Pearce, Employment Law Associate at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of April 2018.