27 May 2016 #Employment
The case of Santos Gomes v Higher Level Care Ltd has made clear that compensation arising out of an employer’s failure to provide statutory rest breaks under the Working Time Regulations (WTR) does not extend to ‘injury to feelings’.
Having been denied rest breaks at work, contrary to the Working Time Regulations (WTR), the Claimant successfully pursued a claim in the Employment Tribunal. In assessing compensation, the Tribunal must consider what award is ‘just and equitable’ in all the circumstances, having regard to the employer’s default and any loss sustained by the worker as a result. The Claimant said that her compensation should include an element of injury to feelings for the damage to her health and wellbeing caused by the breach.
The Claimant was awarded compensation for her pecuniary loss, however, the Tribunal refused to make an award for injury to feelings (a decision upheld on appeal). The Tribunal reached this decision on the basis of an absence of wording within the WTR on the matter and in lieu of the fact that EU law (on which the WTR is based) does not require such compensation. The Employment Appeal Tribunal (EAT) noted that a breach of the WTR would be comparable to a breach of contract which is not remedied by compensation for injury to feelings. It was noted by the EAT that repeated refusal of rest breaks may impact on an employee’s health and that this injury to their health could be compensated under the WTR, however, the Claimant here was claiming an injury to feelings which was not so recoverable.
This case reinforces the point that, at present, injury to feelings awards are confined to discrimination-type cases (including those on the basis of trade union membership and protected disclosures). It is not capable of attracting to a breach of the WTR. This mirrors the position with other non-discriminatory statutory rights such as the right not to be unfairly dismissed. Of course, if the breach was based on discriminatory grounds, injury to feelings would come into play.