Court of Appeal refuses compensation for injury to feelings under the Working Time Regulations 1998 - Gomes v Higher Level Care Limited

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10 April, 2018

Ms Gomes worked for a company providing accommodation and support services for vulnerable young people. She brought a claim for compensation before the Employment Tribunal for failure to allow her rest breaks. Under the Working Time Regulations 1998 (SI 1998/1833) ("WTR"), workers are entitled to an unpaid rest break of 20 minutes when working for more than six hours per day (Regulation 12(1)). Along with a claim for loss of earnings, she alleged that her employer's failure had caused damage to her health and well-being.

Regulation 30(4) provides that the amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances, having regard to; the employer's default in refusing to permit the worker to exercise the right, and any loss sustained by the worker which is attributable to the matters complained of. The compensation is not intended to be punitive.

The tribunal found the employer to be in breach of Regulation 12. At the remedies hearing, the parties agreed a pecuniary loss of £1,220 in respect of loss of earnings, but disagreed about whether the tribunal had jurisdiction to make an additional compensatory award reflecting injury to feelings. The tribunal found it had no such jurisdiction under the WTR.

Ms Gomes appealed to the EAT claiming that an award for injury to feelings could be implied on a proper construction of Regulation 30. The EAT rejected her appeal and upheld the decision of the tribunal.

Ms Gomes then appealed to the Court of Appeal, arguing that the EAT had been wrong as a matter of law. The Court of Appeal dismissed the appeal confirming that there was no power in domestic law to award compensation for injury to feelings for breach of the WTR. Nor did the Working Time Directive warrant such an interpretation.

The Court of Appeal clarified that the wording of Regulation 30(4) did not support the conclusion that injury to feelings should be compensated, whether expressly or implicitly. The phrase "just and equitable" did not confer a general power on tribunals to award what they thought should be justly awarded, and the phrase was not broad enough to confer jurisdiction to award compensation for injury to feelings. If that were the case, there would be jurisdiction to make such an award in unfair dismissal cases, and this had been ruled out in Dunnachie v Kingston upon Hull City Council [2004] UKHL 36 (in that case the Court ruled that non-economic loss was not recoverable in unfair dismissal cases).

The net effect of the failure to provide a paid break was that the worker was required to work for a longer period than they were being paid for. The natural remedy for such a wrong was compensation for that time based on the employee's rate of pay, as the tribunal had found in the first instance.

If you are looking for more information in relation to the Working Time Regulations or any of our services, please view our Employment & HR section. You can also contact our Employment and HR team by telephone on 0333 207 1135. Alternatively, send your enquiry to us through our online contact form.

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