In the case of Gomes v Higher Level Care Ltd, the Employment Appeal Tribunal (“EAT”) held that an award for injury to feelings was not available to an employee whose employer failed to provide adequate rest breaks under the Working Times Regulations 1998 (the “Regulations”).
The EAT found that when making an award for compensation, the Regulations required the Tribunal to focus on the employer’s breach and the financial loss sustained by the employee. The EAT found that an award for injury to feelings required a statutory basis and therefore awards of this type are limited to discrimination cases where injury to feelings have been expressly included in the Equality Act 2010 as a form of damages.
The Regulations provide that workers are entitled to an unpaid rest break of 20 minutes when working for more than six hours per day. Workers can be required to remain in or about their workplace (but not at their workstation) while taking a rest break provided that they do not have to perform any duties during that time.
Miss Gomes brought a claim against her employer for failure to provide her with these rest breaks. The Employment Tribunal upheld Miss Gomes’ claim and therefore went on to assess what compensation she should be awarded. The Regulations provide that compensation must be just and equitable in all the circumstances, and Tribunals must consider the employer's breach, in refusing to permit the worker to exercise the right to rest breaks; and any loss sustained by the worker which is attributable to the failure to provide rest breaks. Miss Gomes alleged that the failure to provide her with adequate rest breaks had caused damage to her health and well-being, and sought compensation for “injury to feelings”.
Compensation for injury to feelings is only available in certain types of employment claims, for example, for discrimination claims under the Equality Act 2010, and whistleblowing detriment claims. However, case law or the common law has established that it is not available in other types of cases, such as unfair dismissal or breach of contract.
In this case, the Employment Tribunal refused to award compensation for injury to feelings, but awarded Miss Gomes £1,200 for financial loss only. The Tribunal found that an award for injury to feelings was not specifically permitted under the Regulations.
Miss Gomes appealed against the Tribunal’s decision.
Appeal to the EAT
The EAT dismissed her appeal.
The EAT found that the Employment Judge had been correct to conclude that compensation for injury to feelings was generally restricted to anti-discrimination statutes.
The EAT held that a claim for the failure to provide rest breaks under the Regulations is similar to a claim for breach of contract, and in UK law, there is no requirement to provide an award for injury to feelings in such claims.
The EAT also noted that under the Regulations, the Tribunals are required to have regard to the employer’s default when considering the amount of compensation to be awarded. By contrast, where an injury to feelings award is made under discrimination legislation, it is based on the effect that the default had on the claimant, not the default itself.
The case is useful to employers as it provides clarification regarding the compensation which can (and cannot) be awarded for this type of claim.
It is also important that employers bear in mind that the EAT’s decision does not leave employees in Miss Gomes’ case completely without a remedy for any injury sustained - workers who suffer injuries resulting from a breach of the Regulations, including psychological injuries, could still pursue a tort claim in the civil courts, where more compensation may be available.