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No Compensation for Injury to Feelings for Employer’s Breach of the WTR

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

In Santos Gomes v Higher Level Care Limited, the Employment Appeal Tribunal (EAT) has upheld the ruling of the Employment Tribunal (ET) that a worker who has not been allowed rest breaks under the Working Time Regulations 1998 (WTR) cannot claim compensation for injury to feelings.

Ms Santos Gomes worked for Higher Level Care Limited, which provides accommodation and support for vulnerable young people, from February 2013 until May 2014. The ET upheld her claim that her employer had failed to provide her with rest breaks, as required by Regulation 12(1) of the WTR where an adult worker’s daily working time is more than six hours, and awarded her compensation of £1,220 in respect of financial loss. However, the ET rejected her contention that Regulation 30(4)(a) of the WTR, which establishes that the ET shall award an amount of compensation that it considers to be ‘just and equitable’, taking into account the employer’s default in refusing to permit the worker to exercise his or her right to rest breaks, should be interpreted as conferring a power to award compensation for injury to her feelings.

The EAT dismissed Ms Santos Gomes’s appeal, finding that there is nothing in domestic law, European case law or the EU Working Time Directive that requires Regulation 30(4)(a) to be interpreted as conferring an entitlement to compensation for injury to feelings.

It is well established that awards for injury to feelings are compensatory rather than punitive. They are calculated based on the effect on the claimant, not on the default of the perpetrator. Nor did the ET err in holding that compensation for injury to feelings is confined to discrimination cases. Claims for failure to allow rest breaks cannot be regarded as cases of discrimination where there is no argument that this was discriminatory treatment because of a protected characteristic under the Equality Act 2010.

Claims for breach of the WTR for failure to allow statutory mandated rest breaks are analogous to claims for breach of contract and there is no entitlement in domestic law to compensation for injury to feelings either for a breach of a contract of employment or for unfair dismissal.

The EAT acknowledged that a claim for compensation for loss might succeed in circumstances where an employee suffered injury to health as a result of an employer’s failure to provide rest breaks, but that was not the argument put forward here.

For advice on any aspect of the WTR as they apply to your workplace, please contact Wendy Davidson.


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