This question was recently considered by The Employment Appeal Tribunal (EAT) in the case of Santos Gomes v Higher Level Care Ltd UKEAT/0017/16.
The Claimant, Miss Santos Gomes was successful in proving that her employer, Higher Level Care Ltd, had failed in their duty to provide her with 20 minute rest breaks as required by the Working Time Regulations 1998 (WTR). or this element of the claim she was awarded compensation for her financial loss in the amount of £1,220. The Employment Tribunal however refused to entertain a further compensation claim for injury to feelings.
The Claimant brought an appeal to the EAT on the basis that Regulation 30(4) did not prevent an award for injury to feelings being made, compensation for injury to feelings was not restricted to discrimination laws, and the WTR did not provide an adequate remedy for this as is required by EU Law.
Regulation 12 of the WTR states that a worker is entitled to a minimum rest break of 20 minutes when working for more than 6 hours per day. Subsequently a worker is permitted to bring a complaint against their employer for a breach of these entitlements. When in such occasions an ET finds in favour of the Claimant, a declaration must be made in this regard and an award of compensation can be made.
The WTR state only that any compensation awarded should be what the ET considers to be ‘just and equitable’ taking into account all of the circumstances and the employers default in refusing to allow the worker to exercise their right (Reg 30(4)(a)) and any subsequent loss sustained by that worker attributable to the matters complained of (Reg 30(4)(b)). Whilst compensation for injury to feelings is available in some types of employment law claims (mostly for discrimination), you cannot claim such compensation for breach of contract or indeed unfair dismissal claims.
The decision of the EAT
The EAT upheld the ET’s original decision that compensation for injury to feelings in instances such as these was not available, and therefore rejected Miss Gomes’ claim.
It likened claims for failure to allow rest breaks to claims for breach of contract and reiterated the fact that there is no entitlement under UK law for compensation for injury to feels in respect of a breach of contract claim.
Although Reg 30(4)(a) of the WTR refers to an employer’s default in failing to allow rest breaks, awards for injury to feels are based on the injury that has been suffered as a result of this by the Claimant, not simply upon the employer’s conduct.
The EAT held that the ET had been correct in finding that compensation for injury to feelings was largely restricted to anti-discrimination legislation and there is no legislation in either UK or EU law, or any Directive, that allows for an award for injury to feelings when a breach of the WTR has been proven.
Although no injury to feelings award was allowed, employers should be mindful that monetary awards for breach of the WTR are permitted to compensate for the resulting financial loss of the employee.
Employers should ensure that they allow their workers to take the required breaks as specified under the WTR, not least to keep their workers happy and of course to increase productivity!
For further details of the minimum break times required under the WTR, please contact Katharine Kelly on 0151 239 1079 or email@example.com.