Santos Gomes v Higher Level Care Ltd

Compensation for injury to feelings is not generally available for breach of the Working Time Regulations 1998. Regulation 30(4)(a) concerns the employer’s default and does not create a separate power to compensate feelings. Regulation 30(4)(b) concerns loss sustained by the worker; the appeal was not pursued on that basis.

The express exclusion of injury-to-feelings awards in legislation concerning part-time, fixed-term and agency workers does not imply a general entitlement in other statutory employment claims. Such awards arise principally in discrimination claims. The Working Time Regulations 1998, construed domestically and consistently with Directive 2003/88/EC, provide an effective remedy without requiring compensation for injury to feelings.

The claimant worked for the respondent providing accommodation and support for vulnerable young people. The Employment Tribunal found that the respondent had failed to provide the 20-minute rest breaks required by regulation 12(1) of the Working Time Regulations 1998. The parties agreed compensation of £1,220 for pecuniary loss.

At the remedy hearing, the Employment Judge refused a further award for injury to feelings under regulation 30(4). The claimant appealed, arguing that regulation 30(4)(a), or a construction conforming with Directive 2003/88/EC, permitted such compensation. The central issue was whether the domestic remedy for failure to provide rest breaks included compensation for injury to feelings.

1. Appeal dismissed. The Employment Judge did not err in holding that compensation for injury to feelings was unavailable under regulation 30 of the Working Time Regulations 1998.
2. Regulation 30(4)(a) requires regard to the employer’s default in refusing to permit the worker to exercise the statutory right. It addresses the nature and circumstances of the default when assessing a just and equitable award. It does not compensate the claimant’s feelings. Injury to feelings is compensatory and depends on the injury suffered by the claimant, rather than on condemnation of the employer’s conduct.
3. Regulation 30(4)(b), which refers to loss sustained by the worker, was not relied upon for the domestic-law argument. The authorities concerning trade-union detriment and whistle-blowing did not establish that regulation 30(4)(a) permits injury-to-feelings awards. The express exclusions in the part-time, fixed-term and agency-worker legislation likewise did not imply a general statutory entitlement.
4. Claims for denied rest breaks are analogous to breach-of-contract claims. They are not, without more, discrimination claims. A discrimination claim may attract injury-to-feelings compensation where the facts satisfy the relevant statutory requirements.
5. Directive 2003/88/EC requires effective protection of the right to rest breaks but leaves Member States substantial freedom as to remedies. Regulation 30 provides a declaration and a discretionary, uncapped just and equitable award having regard to employer default and loss. Neither the Directive nor the principles of effectiveness and conforming interpretation require compensation for injury to feelings. The court observed that medically established injury to health may be a distinct form of loss, but that issue was not the claimant’s case.
6. No reference to the CJEU was made or properly developed. The appeal was dismissed.

• Employment Appeal Tribunal: The appeal from the Employment Judge’s remedy judgment sent on 10 August 2015 was dismissed. The liability finding that the respondent had failed to provide regulation 12 rest breaks, and the agreed pecuniary-loss compensation, were not disturbed.