No injury to feelings award when employer fails to provide rest breaks

Peninsula Team

September 18 2018

In the recent case of Santos Gomes v Higher Level Care Ltd the Court of Appeal were asked to determine whether an employee was entitled to additional compensation for injury to feelings because her employer had failed to provide her with the appropriate rest breaks.

Santos Gomes had worked for the employer, who specialised in providing accommodation and support to vulnerable young people, from February 2013 to May 2014. During her employment Santos Gomes had been denied the requisite rest breaks that she was entitled to under the Working Time Regulations 1998 (WTR). She had specifically been denied her statutory uninterrupted rest break of 20 minutes on numerous occasions when working shifts of over 6 hours, which she argued had resulted in damage to her overall health and wellbeing.

She proceeded to bring this claim, amongst others, to an employment tribunal who ruled that the employer had failed to abide by Regulation 30 of the WTR, in denying her the appropriate rest breaks, and awarded £1,200 in compensation. However, the ET were unwilling to agree with Santos Gomes’ claim that she was owed additional compensation due to injury to feelings under Regulation 30(4)(a) of the WTR which states compensation should be “just and equitable”. In dismissing this claim the judge explained that this regulation did not provide for compensation for injury to feelings and that this award was limited to cases involving discrimination in line with the Equality Act 2010.

Santos Gomes decided to appeal this decision to the Employment Appeal Tribunal (EAT), who subsequently dismissed her claim. The EAT noted that the claimant was unable herself to point to any prior instance in which injury to feelings compensation had been awarded in a claim which did not involve a form of discrimination. In summary, the EAT ruled that withholding rest breaks was the equivalent to a breach of contract, meaning the original ET had ruled correctly on this matter.

Despite this the claimant proceeded to lodge a further appeal with the Court of Appeal (CoA). On this occasion she noted the existence of EU regulations on the matter and requested that if UK domestic law was unclear on how to interpret these regulations then this should be decided by the European Court of Justice (ECJ).

For their part the CoA accepted that the previous decisions of the ET and EAT had relied on statute and therefore decided to explore existing case law. Despite finding that previous cases had on occasion ruled that injury to feelings could be granted in situations other than discrimination, these examples had all involved detriment on the grounds of trade union membership and were therefore not comparable. As such, the CoA concluded that the ET and EAT had acted correctly in these circumstances, dismissing the appeal and the claimants request to refer the case to the ECJ.
This ruling reiterates clearly that the intention of the wording around compensation in the WTR is not designed to allow additional compensation for injury to feelings when it comes to withholding rest breaks. Workers will only be awarded ‘just and equitable’ compensation taking into consideration the employer’s default in refusing the breaks and any loss sustained by the worker.

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