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Workers not entitled to claim an injury to feelings award despite Working Time Regulations breach

16 March 2018


The Court of Appeal (CA) has held in the recent case of Gomes v Higher Level Care that a worker cannot claim compensation for injury to feelings under the Working Time Regulations (WTR) if they have been prevented from taking rest breaks.  

Under the WTR, a worker is entitled to a rest break of 20 minutes when working for more than 6 hours per day.  If an employer is found to have breached a worker’s entitlement, the Tribunal Is able to make an award of compensation which it considers to be “just and equitable” in all the circumstances.  

When she was not allowed to take rest breaks, the Claimant succeeded in her Tribunal claim against her employer for breach of the WTR and was awarded £1,220 compensation for financial loss.  However, the Tribunal refused to allow any award for injury to feelings and so the Claimant appealed to the Employment Appeal Tribunal (EAT) arguing that the WTR did not prevent such an award being made and that compensation for injury to feelings was not limited to discrimination claims.  The EAT disagreed and dismissed her appeal.  In doing so, it held that there is nothing in UK law, EU law or the Directive that required compensation to be awarded for injury to feelings for breach of the WTR. 

Unhappy at the decision, the Claimant appealed to the CA but was again unsuccessful.  On dismissing the Claimant’s appeal, the CA believed that her complaint was similar to a breach of contract claim, for which the remedy was compensation for loss of earnings for the length of the rest breaks.  Whilst there is no right to claim injury to feelings for such a breach, employers still need to ensure that relevant rest breaks are provided.  A failure to do so can still result in claims for compensation and can have an impact on working culture.

Alison Flett

Alison Flett
Associate

E: contact@forburypeople.com
T: 0118 953 3929

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