The Tribunal in Rowe v London Underground Ltd found that the employer had acted in breach of the Safety Representatives Regulations by failing to allow an appointed safety representative to take paid time off work to investigate a problem with a broken rail, but declined to award compensation. Although the Tribunal thought that, in principle, an injury to feelings award could be made, the claimant hadn't shown that he had suffered any injury. The Tribunal also considered the possibility of "just and equitable" compensation, but again concluded that no award should be made.

At the EAT stage, where the claimant's appeal was rejected, the employer tried to rely on the decision earlier this year in Santos Gomes v Higher Level Care Ltd (in relation to a failure to provide rest breaks) that injury to feelings compensation is confined to discrimination cases. The EAT didn’t allow this argument because it hadn’t been raised at tribunal stage but did express the view that, in line with Santos Gomes, injury to feelings awards would not apply to a failure to provide time off for safety reps because it was the denial of a right rather than an act of discrimination. In this sense it differs from detriment suffered as a result of trade union membership, for example, for which injury to feelings compensation would be available.

Although the EAT conceded that it was unusual for there to be no compensation award at all, it was a matter for the Tribunal's discretion, in the light of the employer's actions. The Tribunal had taken into account the fact that the claimant's initial request hadn't made the position clear and that, once it was clarified, the employer had subsequently allowed time off.