27 May 2016
The EAT has held in Santos Gomes v Higher Level Care Ltd, that a worker cannot claim compensation for injury to feelings under the Working Time Regulations 1998 (WTR) if prevented from taking rest periods.
Regulation 12(1) of the WTR provides that a worker is entitled to an uninterrupted rest period of 20 minutes when their daily working time is more than six hours. This should be a break in working time, should not be taken either at the start or at the end of a working day and should not overlap with a worker’s daily rest period.
Workers can bring complaints against their employers in an Employment Tribunal for a breach of their in-work break entitlements. Complaints must be brought within three months starting on the date when it is alleged that the exercise of the right should have been allowed. Where a Tribunal finds a complaint well founded, it will make a declaration to that effect, and may make an award of compensation.
In the above case, Miss Santos Gomes successfully established that her employer failed to provide her with the 20 minute rest breaks required by the WTR and won compensation (£1,220 in respect of financial loss) for this breach. The Employment Judge refused, however, to award compensation for injury to feelings.
On appeal, Miss Gomes argued that an award for injury to feelings could be made under Regulation 30(4)(a) of the WTR, which sets out that a Tribunal will award whatever it considers to be “just and equitable” in all the circumstances having regard to the employers default in refusing to permit the worker to exercise their right.
The Employment Appeal Tribunal rejected this argument holding that there is nothing in UK law, EU law or the Directive that provides for this.
While there is therefore no right to claim injury to feelings for a breach such as this, employers should ensure that the relevant breaks are provided as required. Failure to do so can still give rise to claims for compensation, not to mention the impact upon culture. Maybe there should be a balance between work, rest and play….
Contact: Lesley May, Senior Solicitor ljm@bto.co.uk T: 0141 221 8012
Link to Santos Gomes v Higher Level Care Ltd