No entitlement to injury to feelings compensation for breach of the Working Time Regulations 1998

In the case of Gomes v Higher Level Care Ltd, the Employment Appeal Tribunal held that a worker was not entitled to compensation for injury to feelings for an employer’s failure to provide rest breaks of 20 minutes under the Working Time Regulations 1998.

Legal background
Where an employer is found to be in breach of the Working Time Regulations 1998 (“WTR”) the Employment Tribunal has discretion to award compensation which is just and equitable in all the circumstances, having regard to:

(a) The employer’s default in refusing to permit the worker to exercise the right under the WTR; and
(b) Any loss sustained by the worker which is attributable to the matters complained of.

There is no express statutory right under the WTR to claim injury to feelings.

Facts
In the case of Gomes v Higher Level Care Ltd, Mrs Gomes sought to argue that an award for injury to feelings should be made in respect of her employer’s failure to provide rest breaks of 20 minutes where she worked in excess of six hours in a day. She argued that this failure had caused damage to her health and well-being. 

It was argued before the Employment Tribunal (“Tribunal”) that an award for injury to feelings could be made under the WTR on the basis that the wording of the WTR envisaged compensation being awarded for non-financial loss. In addition, it was asserted that because the WTR did not specifically exclude the possibility of an award for injury to feelings this implied that such an award was permissible. Mrs Gomes’ representative also asserted that the WTR be interpreted, so far as possible, in light of the wording and purpose of the Working Time Directive (“Directive”) and argued that this should require member states to provide  compensation for injury to feelings. 

The Tribunal was not persuaded by these arguments. It refused to award compensation for injury to feelings but it did award compensation for financial loss of £1,220.

Mrs Gomes appealed to the Employment Appeal Tribunal (“EAT”).

Decision
The EAT dismissed the appeal and upheld the Tribunal’s original decision that compensation for injury to feelings could not be awarded for failure to provide rest breaks under the WTR.

The EAT did not agree that the compensation for injury to feelings could be made under the WTR and noted that this remedy is generally only available in cases of discrimination.

In addition, the discrimination legislation contained specific provisions entitling employees to awards for injury to feelings.  There was no such statutory basis under the WTR.

Further, on considering the purpose of the Directive, the EAT noted that it required member states to take the measures necessary to ensure that every worker is entitled to rest breaks. This, it was held, did not provide a basis for Mrs Gomes assertion that this required member states to provide compensation for injury to feelings for breach of the WTR. 

The EAT also took the view that claims for a failure to allow rest breaks under the WTR are akin to breach of contract claims.  As such, there is no entitlement to compensation for injury to feelings for breach of contract.

Comment
This is not the first case to find that compensation for injury to feelings is not available for breach of the WTR. The focus of the Tribunal’s assessment of what compensation is just and equitable must be focused on the employer’s conduct and the economic loss suffered by the individual.

Whilst this case confirms that compensation for injury to feelings is not available for breach of the WTR, employers should ensure that employees are able to take their rest breaks.  Employers should also be mindful that significant compensation may be awarded where the employer’s conduct warrants it. Compensation is not supposed to be punitive but employers should remember that compensation for breach of the WTR is, technically, uncapped. 

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Kerry Garcia

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