Gomes v Higher Level Care Ltd

Regulation 30 of the Working Time Regulations 1998 permits compensatory awards for breach of rest-break rights, but not compensation for injury to feelings. The reference to what is just and equitable gives flexibility in assessing loss; it does not confer a general power to award non-pecuniary damages. The employer’s default concerns the nature and extent of the breach, while loss refers to loss attributable to the failure.

A rest-break claim is akin to breach of contract. The ordinary remedy is payment for working time for which the worker was not paid. The contractual exception for agreements directed to pleasure or enjoyment does not apply. EU law does not require an injury-to-feelings award, and no reference to the CJEU was necessary.

The appellant was employed by the respondent and claimed compensation after the respondent failed to provide the 20-minute rest breaks required by the Working Time Regulations 1998. The Employment Tribunal upheld the rest-break claim and the parties agreed pecuniary compensation of £1,220 under regulation 30. The tribunal nevertheless rejected compensation for injury to feelings.

The Employment Appeal Tribunal dismissed the appellant’s appeal in UKEAT/0017/16/RN. The appellant appealed to the Court of Appeal, arguing that regulation 30 permitted injury-to-feelings compensation and that EU law required that construction. The central issue was whether the statutory remedy, interpreted domestically or conformably with EU law, extended to non-pecuniary injury.

1. Disposition. The Court of Appeal unanimously dismissed the appeal and refused the application for a preliminary reference to the CJEU.
2. Domestic construction. The Employment Tribunal’s jurisdiction was statutory. Regulation 30(4) had to be read as a composite remedial provision. The phrase “just and equitable” supplied flexibility appropriate to the informal tribunal process; it did not create a general jurisdiction to award whatever sum appeared fair. The reference to the employer’s default concerned the nature and extent of the breach. The reference to loss concerned compensatory loss attributable to the failure. The reasoning in Dunnachie v Kingston Upon Hull City Council [2004] UKHL 36 was inconsistent with an award for injury to feelings in this context and supported that construction.
3. Nature of the right. A rest-break complaint was in substance akin to breach of contract. The wrong was that the worker was required to work for a period for which she was not paid. The natural remedy was compensation calculated by reference to the relevant rate of pay. The exception recognised in spoiled-holiday cases, where the purpose of the contract was pleasure or enjoyment, did not apply.
4. Earlier employment authorities. The approach in Brassington v Cauldon Wholesale Ltd [1978] ICR 405 and Cleveland Ambulance NHS Trust v Blane [1997] ICR 851 was arguably difficult to reconcile with Dunnachie and was confined to its particular context. The Court left their correctness in that context for another case. In any event, those authorities concerned rights analogous to discrimination claims, whereas the present claim was contractual in substance. London Borough of Hackney v Adams [2003] IRLR 402 and South Yorkshire Fire & Rescue Service v Mansell & Others (UKEAT/0151/17) did not alter that distinction.
5. EU law. EU law generally leaves remedies to Member States, subject to equivalence and effectiveness. Domestic law provided equivalent treatment for comparable contractual and unfair-dismissal rights. The Directive’s health objective and the CJEU’s decision in Case C-84/94 United Kingdom v EU Council [1996] 3 CMLR 671 did not establish any right to compensation for injury to feelings. The EU-law point was acte clair against the appellant.

• Court of Appeal (Civil Division): Appeal dismissed. Application for a reference to the CJEU refused.
• Employment Appeal Tribunal: Appeal dismissed in UKEAT/0017/16/RN; the tribunal had no power to award compensation for injury to feelings under regulation 30.
• Employment Tribunal: Rest-break claim upheld. The parties agreed pecuniary compensation of £1,220, but compensation for injury to feelings was refused.