Under the Working Time Regulations, workers are entitled to various periods of rest during their working week, including a daily rest period of 11 hours, 24 hours’ uninterrupted rest per week, and, where the working day is longer than 6 hours, a rest break of 20 minutes. The remedy where a worker has been refused the right to take these breaks is an award of compensation which takes into account the employer’s default and any loss sustained by the worker. Given that rest periods are unpaid, it is rare for there to be any financial loss, so what in fact is the potential liability for an employer who gets it wrong?
Facts
This was the issue considered by the Employment Appeal Tribunal in the recent case of Gomes v Higher Level Care. The claimant, who worked for a company which provided accommodation and support for vulnerable young people, alleged that she had been refused the right to take 20-minute rest breaks during her shifts and claimed compensation for failure to allow her rest breaks including for “damage on my health and well-being”. Her claim was successful and the Employment Tribunal made a small award of £1,220 to reflect her employer’s default.
In the Employment Appeal Tribunal Ms Gomes claimed that she should also have received an award for injury to feelings to reflect the damage to her health and well-being caused by her employer’s refusal to allow her to take rest breaks and argued that the reference in the Regulations to “loss sustained by a worker” could include both financial and non-financial loss, particularly given that it was rare for workers to sustain any financial loss as a result of not being allowed to take unpaid rest breaks.
Decision
The EAT rejected this argument, commenting that awards for injury to feelings are usually only awarded under anti-discrimination statutes and that a claim for a failure to allow rest breaks under the Regulations is more akin to a claim for breach of contract than discrimination. The EAT pointed out that whereas compensation for injury to feelings is expressly provided for in the Equality Act to reflect the impact of the discrimination on a claimant, in the Working Time Regulations there is no express provision for injury to feelings compensation and the focus when it comes to compensation is
Comment
This decision confirms the decision of the EAT in the earlier case of Miles v Linkage Community Trust Limited, that compensation for injury to feelings should not be awarded in cases involving a breach of the right to rest periods under the Working Time Regulations. The EAT held in Miles that the factors for a tribunal to consider when deciding on an award of compensation are the period of time during which rest periods have been refused, the number of hours of rest which have been denied, and how outrageous or offensive the employer’s conduct has been. In fact, in the Miles case the employer had acted in good faith but had misinterpreted the Regulations on the basis of erroneous legal advice, so even though there had been a breach of the Regulations, no compensation was awarded.
Gomes v Higher Level Care UKEAT/0017/16
Miles v Linkage Community Trust Limited UKEAT/0618/07
