The Employment Appeal Tribunal (EAT) has held in South Yorkshire Fire & Rescue Service v Mansell and ors that tribunals can make awards for injury to feelings in detriment claims relating to the Working Time Regulations (WTR), as these are “akin to discrimination” claims. This is in contrast to some other claims under the WTR, for instance a failure to allow rest breaks which are akin to a breach of contract claim.
Thompsons was instructed by the FBU to represent its members.
Basic facts
A group of firefighters were compulsorily transferred to another station after they refused to take part in a new duty system called Close Proximity Crewing at their station. The new system, which conflicted with a different duty system collectively agreed with the FBU, was in breach of two provisions of the Working Time Regulations - regulation 6 (length of night work) and regulation 10 (daily rest).
The firefighters alleged that, as a result, their employer was in breach of section 45A in Part V of the Employment Rights Act (ERA) which protects employees from suffering a detriment because they have refused to comply with a requirement which the employer imposed on them in contravention of the WTR.
In addition to financial loss the firefighters claimed increased journey times; interference with care obligations; loss of free time, leisure time, and family time; the loss of existing congenial working arrangements; and disruption to their work patterns and working relationships.
Relevant law
Section 45A, which is headed up “Working time cases” states that:
(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his [sic] employer done on the ground that the worker
(a) refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998
(b) refused (or proposed to refuse) to forgo a right conferred on him [sic] by those Regulations …”
Tribunal decision
The tribunal agreed that the firefighters had been subject to a detriment contrary to section 45A. The issue then arose as to whether they were entitled to compensation for injury to feelings under section 49 ERA.
The tribunal held that, as they were “part of a group who have been identified by the Respondent by reference to a particular defining characteristic, namely that they were refusing to acquiesce in a breach of their employment rights”, their complaint amounted to discrimination. They were therefore entitled to an award for injury to feelings.
The fire service appealed on the basis that the tribunal had no jurisdiction to make awards for injury to feelings or other non-pecuniary loss in a section 45A case, as these were only available for whistleblowing detriment claims and/or claims of detriment arising from trade union membership or activities which were “akin to discrimination”. There was therefore no basis to go beyond those established categories.
EAT decision
The EAT did not agree, however, holding instead that an award for injury to feelings under section 49 should be potentially available to all the different detriment claims that could be brought under Part V ERA similarly to claims of discrimination and victimisation.
The only question was whether it should be made in a particular case and if so, what amount. As these were matters of fact, they were for the tribunal to decide.