In Gomes v. Higher Level Care Ltd UKEAT/0017/16 the EAT held the claimant could not recover losses for injury to feelings after her employer had breached regulation 12(1) of the Working Time Regulations 1998 (WTR). Regulation 12(1) provides for rest breaks for workers.

The ET had awarded the claimant £1,220 in compensation for the WTR breach. However, it rejected the claimant's claim for injury to feelings compensation for the damage the failure had caused to her health and wellbeing. The ET held the claimant had no entitlement under regulation 30 of the WTR.

The claimant appealed to the EAT arguing that regulation 30(4)(a) of the WTR did not preclude an injury to feelings award, and that awards were not restricted to discrimination provisions. She asserted the judge at first instance had wrongly found there was nothing in the European Working Time Directive calling for injury to feelings awards to be available for breaches of the Directive. She also asserted that, if injury to feelings awards were not available under regulation 30(4) of the WTR, the remedy provided by the WTR was ineffective for EU law.

The EAT noted that, in discrimination awards, ETs do not award compensation based on the employer's default but based on the effect on the claimant. Conversely regulation 30(4)(a) WTR refers directly to the employer's default. The EAT did not accept that, because the legislation did not exclude injury to feelings awards, they were available. The EAT could not justify what it considered an unsupported and strained interpretation of the WTR to enable a claimant to recover injury to feelings loss.