When can injury to feelings compensation be awarded in working time cases?
Details
Two recent decisions have considered the extent to which injury to feelings compensation can be awarded in working time cases. Taken together, the answer provided amounts to ‘it depends on the nature of the claim’.
Legal background
We recently reported that the Employment Appeal Tribunal (EAT) had 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 (ERA 1996), which includes claims for working time detriment.
However, what about claims brought under the Working Time Regulations 1998 (WTR) – the tribunal can award such compensation as it considers ‘just and equitable’, but does this include jurisdiction to award compensation for injury to feelings? This issue was recently considered by the Court of Appeal.
Factual background
The employee, G, brought a number of claims against the employer after her employment had terminated. These included a claim that the employer had failed to allow her to take the in-work rest breaks to which she was entitled under the WTR (20 minutes rest break when the daily working time is 6 hours or more). The employment tribunal upheld some of G’s claims including her WTR claim for failure to provide rest breaks. At the remedy hearing the parties had agreed that G was entitled to receive £1,220 compensation for the rest breaks she had not been provided with. G argued that she was also entitled to compensation for injury to feelings on the basis that the lack of rest breaks had damaged her health and wellbeing. The tribunal dismissed this argument and held that it did not have the power to make an injury to feelings award. The EAT upheld the tribunal’s decision and G appealed to the Court of Appeal.
Court of Appeal decision
The Court of Appeal dismissed G’s appeal. The court considered that G’s claim for loss of rest breaks was akin to a breach of contract claim. As such, the appropriate remedy was compensation for loss of earnings for the length of the missed rest breaks (which the parties had already reached agreement upon). There was no jurisdiction under the WTR for the tribunal to award compensation for injury to feelings.
So, when can injury to feelings compensation be awarded in working time cases?
Taken together, the answer provided by the EAT in Mansell and the Court of Appeal in Gomes amounts to ‘it depends on the nature of the claim’. As the law currently stands, an employee:
- cannot claim injury to feelings resulting from the employer’s failure to comply with the working time regulations (e.g. failure to provide rest breaks)
- can claim injury to feelings if they suffer a detriment related to their:
- actual or proposed refusal to comply with a requirement which is in breach of the WTR (e.g. if they are disciplined because they refuse to work through their rest break)
- actual or proposed refusal to forgo a WTR right (e.g. they refuse to work more than 48 hours a week and are not promoted as a result)
- failure to sign (or to vary or amend) a workforce agreement for WTR purposes
- actual or proposed performance of any functions or activities as a workforce representative
- allegation that the employer has infringed a WTR right
- issuing of proceedings against the employer to enforce a WTR right
The first is a claim brought under the WTR, whereas the latter is a claim brought under the ERA 1996.
