88: Compensation for injury to feelings can be awarded in working time detriment claims

Part V of the Employment Rights Act 1996 (ERA) provides protection from suffering detriment in employment in a number of circumstances including working time, health and safety, Sunday working, whistleblowing, and flexible working cases. Compensation payable to workers who succeed in a detriment claim is the amount considered by the Tribunal to be just and equitable in all the circumstances, having regard to the particular infringement and any loss attributable to it (section 49 ERA). In the recent case of South Yorkshire Fire and Rescue Service v Mansell and others, the EAT considered whether compensation for a working time detriment claim could include an injury to feelings award.

The South Yorkshire Fire and Rescue Service introduced a duty system called Close Proximity Crewing (CPC) which was in breach of the Working Time Regulations 1998 in relation to length of night work and daily rest. When the firefighters refused to work under the CPC shift system, they were transferred to other stations. They subsequently brought successful working time detriment claims in the Employment Tribunal. In addition to financial loss, the firefighters also claimed non-financial losses. They argued that the detriment they had suffered as a result of being moved to other fire stations included injury to feelings; interference with care obligations; loss of free time and family time; the loss of congenial working arrangements; and disruption to their work patterns and working relationships.

At a preliminary hearing on remedy, the Tribunal held that compensation for non-pecuniary loss, including injury to feelings, could potentially be awarded for working time detriment claims under section 49 ERA. The Fire Service appealed, arguing that the Tribunal does not have jurisdiction to make injury to feelings awards in claims under Part V of the ERA, except in whistleblowing detriment claims where case law has already established that such awards are possible. It was conceded that compensation for other non-pecuniary loss is recoverable.

The EAT upheld the Tribunal’s decision, noting that all forms of detriment under Part V of the ERA are similar to discrimination and victimisation and can potentially result in significant injury to feelings. However, whether an injury to feelings award should be made and, if so, the amount, would depend on the facts in each case.

This case confirms that injury to feelings awards are potentially available in working time detriment claims as well as in all other forms of detriment claims under Part V of the ERA, although whether an award is made will depend on the precise circumstances of the case. This highlights the importance of refraining from taking action against employees which could amount to detrimental treatment, for example, when making changes to shift patterns or flexible working arrangements.