The EAT has held that tribunals have the jurisdiction to make awards for injury to feelings in working time detriment claims.

The facts

Workers are protected from being subjected to a detriment on the grounds that they have refused (or proposed to refuse) to a) comply with a requirement which the employer has imposed in contravention of the Working Time Regulations 1998 or b) forgo a right conferred on them by the Working Time Regulations.

Mr Mansell and his colleagues are firefighters. They were compulsorily transferred from one of two stations in South Yorkshire following their employer's introduction of a new duty system called Close Proximity Crewing (CPC), which was very different from the traditional duty system. The CPC involved a breach of Working Time Regulations in relation to length of night work and daily rest. Mr Mansell and the other claimants would not agree to volunteer for CPC and in consequence were transferred to other stations. They claimed that this compulsory transfer was a detriment that they had suffered for refusing to acquiesce to a breach of their rights under the Working Time Regulations. In addition to the financial loss that they claimed to have suffered as a result of the moves to other stations, they claimed non-financial losses. These included: increased journey times; interference with care obligations; loss of free time, leisure time, and family time; the loss of existing congenial working arrangements; and disruption to their work patterns and working relationships.

Their claims succeeded. At a preliminary hearing on remedy, the tribunal held that compensation for non-financial loss, including injury to feelings, was potentially available. The tribunal referred to claims of working time detriment as "discrimination" and, more precisely, "victimisation", and said that it could envisage, depending on the facts of each case, that "significant injury to feelings" might flow from working time detriment. 

The employer appealed to the EAT, arguing that the tribunal did not have jurisdiction to make awards for injury to feelings in such cases. 

The EAT dismissed the employer's appeal. It held that tribunals could make awards for injury to feelings in working time detriment claims, which it treated as being akin to discrimination claims. The EAT did however point out that there was a clear distinction to be made between the fact that awards for injury to feelings could potentially be made and whether, in a particular case, an award should be made, and how much it should be.

What does this mean for employers?

Employers should be aware that awards for claims of detriment for asserting working time rights will potentially be higher as a result of this case. As confirmed by the EAT, the potential for injury to feelings awards will also apply to the following claims where detriment can be alleged: jury service; health and safety cases; Sunday working; trustees of occupational pension schemes; employee representatives; employees exercising the right to time off work for study or training; protected disclosures; leave for family and domestic reasons; tax credits; flexible working; and employee shareholder status.

South Yorkshire Fire & Rescue Service v Mansell and others UKEAT/0151/17