No injury to feelings

Regulation 12(1) of the Working Time Regulations (WTR) states that workers are entitled to a rest break of 20 minutes when working for more than six hours per day. In Santos Gomes v Higher Level Care Ltd, the Employment Appeal Tribunal (EAT) held that when compensation is awarded for a failure to provide rest breaks, this cannot include compensation for injury to feelings.

Basic facts

Ms Santos Gomes worked for Higher Level Care Ltd from 1 February 2013 until 28 May 2014. On 3 June 2014 she lodged a tribunal claim alleging (among other things) that her employer had failed to provide her with rest breaks contrary to the WTR and which had resulted in damage to her “health and well-being”.

Relevant law

Regulation 30(3) states that where an employment tribunal finds a complaint well-founded, the tribunal (a) shall make a declaration to that effect, and (b) may make an award of compensation to be paid by the employer to the worker.

Regulation 30(4) states that the amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to (a) the employer’s “default” in refusing to permit the worker to exercise their right, and (b) any loss sustained by the worker which is attributable to the matters that they complained about.

Tribunal decision

The tribunal upheld the claim brought by Ms Santos Gomes that the company had failed to provide her with the 20-minute rest breaks required by the WTR. A remedy hearing then took place at which it was agreed that she was entitled to an award of compensation of £1,220 under regulation 30 of the WTR. However, the judge rejected the contention that she was also entitled to recover compensation for injury to feelings under regulation 30 or under the EU Working Time Directive.

Ms Santos Gomes appealed, arguing that an award for injury to feelings could be made under regulation 30(4)(a).

EAT decision

The EAT however, disagreed, holding that not only was there no express provision under the WTR (unlike the Equality Act) for making an award of injury to feelings, Ms Santos Gomes could not point to any case law in which compensation for injury to feelings had been awarded in a claim not involving discrimination. The fact that it was expressly excluded in the Part-Time Workers (Prevention of Less Favourable Treatment Regulations) 2000 and the Fixed-Term (Prevention of Less Favourable Treatment Regulations) 2002 did not mean that it was available in WTR claims.

Nor could regulation 30(4)(a) which applies to an employer’s default be read to cover injury to feelings which is based on the effect on a worker. The EAT could not justify adopting an “unsupported strained construction” of regulation 30(4)(a) requiring consideration of the employer’s default.

Nor could she claim for injury to feelings under the EU principle of effectiveness – which means that it must not be difficult to enforce EU law in domestic law. Neither the directive nor European case law required the courts to construe WTR regulation 30(4) so as to provide compensation for injury to feelings.