91: No compensation for injury to feelings for failure to provide rest breaks under the Working Time Regulations

Under the Working Time Regulations 1998 (WTR), workers are entitled to an unpaid rest break of 20 minutes when working for more than six hours per day (regulation 12(1)).  Compensation for breach of this right is the amount considered by the Tribunal to be just and equitable in the circumstances, having regard to the employer’s default in refusing to permit the worker to exercise the right, and to any loss sustained by the worker as a result (regulation 30). In Gomes v Higher Level Care Limited, the Court of Appeal has held that this wording does not cover compensation for injury to feelings.

Ms Gomes brought a successful claim against Higher Level Care Limited for failure to allow her rest breaks and was awarded compensation of £1,220 in respect of financial loss. The Tribunal refused to make an award of compensation for injury to feelings, arguing that it had no jurisdiction under the WTR to do so. This decision was upheld by the Employment Appeal Tribunal.

The Court of Appeal also dismissed Ms Gomes’ appeal, confirming that the requirement for compensation to be ‘just and equitable’ in the WTR did not support the conclusion that injury to feelings should be compensated, whether expressly or implicitly. If that were the case, there would be jurisdiction to make injury to feelings awards in unfair dismissal cases, where case law has established that non-economic loss is not available. The Court of Appeal likened a claim for failure to provide a rest break to a breach of contract claim in that the natural remedy was compensation for the time which should not have been worked. This contrasts with working time detriment claims, where compensation for injury to feelings is recoverable because detriment claims are regarded as similar to discrimination claims.

This case clarifies that injury to feelings awards will not be made for failure to provide rest breaks under the WTR.  Compensation in these cases will focus on the nature and extent of the employer’s default and the financial loss suffered by the worker.