Workers Deprived of Rest Breaks Not Entitled to Injury to Feelings Compensation
The Employment Appeal Tribunal has rejected an employee’s argument that compensation for failing to provide rest breaks can included compensation for injury to feelings.
The Employment Appeal Tribunal has rejected an employee’s argument that compensation for failing to provide rest breaks under the Working Time Regulations 1998 (WTR) can include compensation for injury to feelings. The fact that injury to feelings compensation is not expressly excluded by the WTR does not imply that it can be awarded. In cases where injury to feelings compensation is available, the focus is on the claimant and the effect the employer’s conduct/failure has on the claimant. By contrast, the focus when awarding compensation under the WTR is on the employer’s default.
In Gomes v Higher Level Care Ltd, Ms Gomes successfully claimed that her employer had failed to provide her with a 20 minute rest break, as required by the WTR. She alleged that this had damaged her health and well-being. The employment tribunal awarded her £1,220 compensation but refused to award her any extra compensation for injury to feelings.
Ms Gomes appealed. Regulation 30 WTR provides that a tribunal may make an award of such compensation as is just and equitable in all the circumstances, having regard to the employer's default and any loss sustained by the worker attributable to the failure (in this case, to provide a rest break). She argued that this wording did not preclude compensation for injury to feelings and that compensation for injury to feelings is not limited to discrimination claims under the Equality Act 2010 (EqA). For example, it is available in trade union detriment claims.
The Employment Appeal Tribunal rejected her appeal. The fact that compensation for injury to feelings is not expressly excluded by the WTR does not imply that it can be awarded. The EqA expressly provides that an award may include compensation for injured feelings. Trade union detriment claims are treated as a form of discrimination. Where an injury to feelings award is made in discrimination cases, it is based on the effect of the discrimination on the claimant, not on the default of the perpetrator. By contrast, compensation under Regulation 30 WTR focuses on the employer’s default.
Claims for failing to provide rest breaks are similar to claims for breach of contract where injury to feelings compensation cannot be awarded.
Compensation for injury to feelings cannot be awarded where an employer fails to provide a rest break. When assessing compensation for such a failure tribunals can only take into account the extent of the employer’s default (although the award is not punitive in nature) and any financial losses suffered by the claimant.
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