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The Employment Appeal Tribunal ("EAT") has held in Santos Gomes v Higher Level Care Ltd UKEAT/0017/16 that a worker cannot claim compensation for injury to feelings under the Working Time Regulations 1998 ("WTR") if prevented from taking rest breaks.
Under Regulation 12(1) of the WTR, a worker is entitled to a rest break of 20 minutes when working for more than 6 hours per day.
Workers are able to bring complaints against their employers in an Employment Tribunal ("ET") for a breach of their rest break entitlements. Where a ET finds that such a complaint is well-founded, it must make a declaration to that effect and may make an award of compensation. The WTR provides that such compensation must be what the ET considers to be "just and equitable" in all the circumstances. Having regard to the employers default in refusing to permit the worker to exercise their right (Regulation 30(4)(a)) and any loss sustained by the worker which is attributable to the matters complained of (Regulation 30(4)(b)).
Compensation for injury to feelings is available in certain types of employment claims; most usually discrimination claims. It is not available in unfair dismissal or breach of contract claims.
In the above case, Miss Santos Gomes successful establishing that her employer failed to provide her with the 20 minute rest breaks required by the WTR and won compensation of £1,220 in respect of financial loss. The ET however refused to award any compensation for injury to feelings.
Miss Gomes appealed to EAT arguing that Regulation 30(4)(a) of the WTR did not prevent an award for injury to feelings, compensation for injury to feelings was not restricted to anti-discrimination statutes and that the WTR did not provide an effective remedy as required under EU law.
The EAT rejected the arguments put forward by Miss Gomes and dismissed the appeal, upholding the ET's decision that compensation for injury to feelings was not available.
The EAT held that claims for failure to allow rest breaks under the WTR are like claims for breach of contract. There is no entitlement in UK law for compensation for injury to feelings for a breach of contract. Regulation 30(4)(a) specifically refers to the employer's default in not allowing rest breaks. However, an award for injury to feelings is based on the injury suffered by the claimant, not just the employer's conduct. The EAT therefore found that the ET was right to conclude that compensation for injury to feelings was generally restricted to anti-discrimination statutes and there is nothing in UK law, EU law or the Directive that provides for an award for injury of feelings to be made for breach of the WTR.
Whilst this decision clarifies that there is no right to claim compensation for injury to feelings for claims relating to breach of the WTR, employers should ensure that the necessary breaks required under the WTR are provided to workers. Failure to do so can still give rise to claims for compensation in respect of financial loss as well as impact upon the working culture and relationships. If a worker has suffered physical or psychological injuries resulting from a breach of the WTR, they would need to consider bringing a tort claim in the civil courts.
This article has been written by Kelli Pimm.