No injury to feelings compensation for breach of Working Time Regulations

Where an Employment Tribunal finds that the Working Time Regulations 1998 (WTR) have been breached, it may award such compensation as is just and equitable in all the circumstances, having regard to the employer’s conduct and any loss incurred by the worker (Regulation 30, WTR).

In Santos Gomes v Higher Level Care Ltd, a worker argued that she should receive compensation for injury to feelings under the WTR where she was prevented from taking rest breaks.

Miss Santos Gomes brought a successful claim in the Employment Tribunal for her employer’s failure to provide 20 minute rest breaks as required by the WTR. The Tribunal awarded her £1,220 in respect of financial loss but rejected her claim for additional compensation for injury to feelings, finding that this is not required by UK or EU law.

On appeal, Miss Santos Gomes argued that the WTR did not preclude an award for injury to feelings, and that if compensation for injury to feelings was not available, then the WTR did not provide an effective remedy as required under EU law. However, the Employment Appeal Tribunal (EAT) rejected these arguments. Compensation for breach of the WTR is linked to the employer’s conduct in not allowing the worker to exercise a right, whereas injury to feelings compensation is based on the effect of an employer’s breach on the worker. In addition, just because loss for injury to feelings is not expressly excluded does not mean that Tribunals have the discretion to award it. The EAT also confirmed that there is nothing in the EU Working Time Directive or EU law which requires this remedy.

When considering compensation for a breach of the WTR, the Tribunal will focus on the employer’s conduct and any economic loss suffered by the worker. This case confirms that there is no scope for awarding compensation for pure injury to feelings, although the EAT did note that the WTR might allow compensation for injury to health caused by the employer’s breach. Injury to feelings awards are not available in unfair dismissal or breach of contract claims, and are generally restricted to anti-discrimination legislation which protects aspects of a worker’s identity.