Injury to feelings damages available for more detriment claims

Until now, it was commonly understood that injury to feelings damages were available in the following claims:

• discrimination claims
• whistleblowing detriment claims
• trade union membership or activities detriment claims

In a landmark decision, the Employment Appeal Tribunal (EAT) has now ruled that injury to feelings damages can be claimed in all of the detriment claims listed in Part V of the Employment Rights Act 1996. This means that injury to feelings awards may be made in a far wider list of claims than previously thought.

Which new detriments can injury to feelings damages be claimed for?

In addition to those claims listed above, as a result of the EAT’s decision compensation for injury to feelings may be claimed in the following detriment claims (which are listed in Part V of the Employment Rights Act 1996):

• Jury service: detriment for being summoned to attend, or actually attending jury service
• Health and safety: detriment for carrying out health and safety activities, being a health and safety representative, taking part in the election of a safety representative, bringing health and safety issues to the employer’s attention or taking action (or leaving the workplace) to avoid a serious and imminent danger
• Sunday working for shop/betting workers: detriment for actual or proposed refusal to do shop work (including additional hours), or betting work, on Sunday or on a particular Sunday
• Working time: detriment for actual or proposed refusal to comply with a requirement which is in breach of the Working Time Regulations 1998 (WTR), actual or proposed refusal to forgo a  WTR right, failure to sign (or to vary or amend) a workforce agreement for WTR purposes, actual or proposed performance of any functions or activities of a workforce representative, alleging that the employer has infringed (or brought proceedings against the employer to enforce) a WTR right
• Trustees of occupational pension schemes: detriment for being a trustee of a relevant occupational pension scheme or the actual, or proposed, performance of any functions as a trustee
• Employee representatives: detriment for standing for election for, or the actual or proposed performance of the functions or activities of an employee representative for redundancy or TUPE purposes
• Paid time off for study or training: detriment against a young person in Wales or Scotland exercising their right to paid time off for study or training
• Family and domestic leave: detriment for a reason related to, or because the employee proposed or actually exercised their right to, time off for pregnancy/childbirth, maternity leave, adoption leave, parental leave, shared parental leave, paternity leave or dependant care leave
• Tax credits: detriment for any actual or proposed action taken with a view to enforcing, or otherwise securing the benefit of tax credits, because a penalty was imposed on the employer (or proceedings brought) or because the employee is entitled, or will or may be entitled, to working tax credit
• Flexible working: detriment for an actual or proposed application for flexible working, bringing legal proceedings against the employer for failure to properly handle a flexible working request, or alleging that there are grounds to bring such proceedings
• Unpaid time off for study and training: detriment for actual or proposed making of an application for time off, the actual or proposed exercise of right to time off, bringing legal proceedings against the employer for failure to properly handle a request for unpaid time off for study and training, or alleging that there are grounds to bring such proceedings
• Employee shareholder status: detriment for refusal to accept an offer made by the employer for the employee to become an employee shareholder

What is meant by a ‘detriment’?

The term ‘detriment’ is not defined in the Act, but it is generally accepted that a worker suffers a detriment if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances. It might include, by way of example:

• failure to offer opportunities for training, development or promotion
• closer monitoring
• bullying, harassment or ostracism
• blocking access to resources
• unrequested reassignment or relocation
• demotion
• suspension
• disciplinary sanction or dismissal
• victimisation

Factual background to claim

The claim was brought by a group of firefighters who brought claims against the fire authority for ‘working time detriment’. The claims arose from the introduction of a new shift system which (without variation of a collective agreement) involved a breach of the firefighters’ rights under the WTR relating to night work and daily rest periods. The firefighters were unwilling to volunteer for the new shift system and in consequence were transferred to other fire stations. Their claims for working time detriment succeeded. In terms of remedy, the employment tribunal held, at a preliminary hearing, that compensation for non-pecuniary loss, including injury to feelings, were potentially available. The fire authority appealed, accepting that there could be an award for non-pecuniary loss but not for injury to feelings. The EAT dismissed the appeal, holding that all claims of detriment under Part V Employment Rights Act 1996 were akin to claims of discrimination and victimisation. The question of whether an award for injury to feelings should be made was a question of fact in each particular case for the employment tribunal to consider.