Gomes v HigherLevel Care Limited (Court of Appeal)

The Court of Appeal has confirmed that compensation for ‘injury to feelings’ cannot be awarded where an employer provides inadequate rest breaks under the Working Time Regulations 1998.

Soon after the termination of her employment, the Claimant filed a claim against her ex-employer alleging that it had failed to allow her the rest breaks to which she was entitled under the Working Time Regulations ("WTR"). She alleged that this had damaged her health, well-being and argued that her remedy should therefore include an element to reflect her injured feelings. The Employment Tribunal held that her WTR rights had been infringed, but considered it had no power to make an award in respect of this non-pecuniary head of loss. The EAT agreed, but the Claimant pursued a further appeal.

The Court of Appeal rejected her appeal. Whilst the WTR does confer discretion on tribunals to award compensation they consider ‘just and equitable’ for non-compliance, their considerations should be limited to the extent of the employer’s default and the worker’s loss, rather than injury to feelings. Failing to permit sufficient rest breaks is best characterised as a quasi-breach of contract, entitling a Claimant to compensation to reflect the additional hours for which they, in effect, will have worked without additional payment.

This decision provides helpful clarity on the remedies available for direct WTR breaches. However, it does not rule out the possibility of injury to feelings awards in the context of broader claims relating to working time. For example, employees suffering a detriment for seeking to assert their WTR rights may be entitled to such an award on the basis that this is a statutory tort analogous to discrimination for which injury to feelings awards are available.