Under the Working Time Regulations 1998 (WTR 1998), workers are entitled to an unpaid rest break of 20 minutes when working for more than six hours per day (regulation 12(1)). Rights granted by the WTR 1998 are enforceable by workers bringing complaints to employment tribunals (regulation 30(1), WTR 1998).
Where a complaint is well founded, the tribunal must make a declaration to that effect and may make an award of such compensation that is just and equitable in all the circumstances, having regard to the employer's default in refusing to permit the worker to exercise the right (regulation 30(4)(a)) and any loss sustained by the worker which is attributable to the matters complained of (regulation 30(4)(b)).
In the case of Gomes v Higher Level Care Limited the Claimant brought a successful claim for failure to provide rest breaks under regulation 12(1) of the WTR 1998. She alleged that this had caused damage to her health and wellbeing. An Employment Tribunal awarded the Claimant £1,220, but refused to order any additional compensation for injury to feelings. The tribunal found that she was not entitled to such compensation under regulation 30 of the WTR 1998 and that this was not required by the Working Time Directive.
The Employment Appeal Tribunal agreed with this approach and clarified that for there to be an award for injury to feelings there must be an express statutory basis (as there is in the Equality Act 2010 for discrimination claims). Regulation 30 of the WTR 1998 requires the tribunal to focus on the employer's default, in refusing to permit the worker to exercise the relevant right, and any economic loss sustained by the worker. There was no justification for adopting an unsupported construction so as to fit the injury to feelings sustained by the Claimant. Therefore as there is no express right to compensation for injury to feelings in the WTR 1998, no such award could be made.
Although the decision on the limitations of compensation in these circumstances will be of some comfort to employers, it is also useful reminder of the importance of complying with the rights to reasonable rest periods enshrined in the WTR 1998 so as to avoid reputational damage.