Gomes v Higher Level Care Ltd

The Court of Appeal held that an Employment Tribunal does not have jurisdiction under Regulation 30 of the Working Time Regulations 1998 to award compensation for injury to feelings for breach of the right to rest breaks in Regulation 12. The court treated such claims as akin to contractual or pecuniary claims for unpaid working time and concluded that the remedial words in Regulation 30(3)-(4) permit awards for pecuniary loss attributable to the employer's default but do not extend to non-pecuniary loss such as injury to feelings. The court relied on statutory interpretation and the House of Lords authority in Dunnachie to reject the argument that the tribunal’s remedial power should be read broadly to include injury to feelings, and it rejected the submission that EU law (Directive 2003/88/EC) required a different construction or a reference to the Court of Justice of the European Union.

Background and parties: The appellant, employed by the respondent from February 2013 to May 2014, complained to the Employment Tribunal that her employer failed to provide 20 minute rest breaks under Regulation 12 of the Working Time Regulations 1998 and that this damaged her health and well-being. The Employment Tribunal (EJ Zuke) found breaches of the Regulations and, on remedies, awarded agreed pecuniary compensation for unpaid breaks but refused to award compensation for injury to feelings. The Employment Appeal Tribunal (Slade J) dismissed the appellant’s appeal. The appellant appealed to the Court of Appeal.

Nature of the application: The appeal raised (i) whether Regulation 30 of the Working Time Regulations permits an award for injury to feelings and (ii) if domestic law did not permit it, whether the Regulations must be interpreted to permit such an award to comply with EU law; the appellant also sought a preliminary reference to the CJEU if the point were not acte clair.

Issues framed: (1) statutory construction of Regulation 30(3)-(4) and whether that permits non-pecuniary awards for injury to feelings; (2) whether EU law principles of effectiveness or conformity require that construction or a CJEU reference.

Reasoning and subsidiary findings: The court analysed the remedial wording in Regulation 30, distinguishing the limb referring to the employer’s "default" (which addresses the nature of the infringement) from the limb referring to "loss" (which addresses compensable loss). It concluded injury to feelings is a non-pecuniary loss and that the statutory scheme and relevant authorities (notably Dunnachie v Kingston Upon Hull City Council) show Parliament intended non-pecuniary awards to be available only where statute expressly so provides (as in discrimination legislation). The court observed that the present wrong is analogous to a contractual claim for unpaid working time and that the natural remedy is pecuniary compensation for the unpaid time, not damages for hurt or distress. On EU law, the court accepted the principles of equivalence and effectiveness but considered they did not require a wider domestic remedy in this context, that authorities relied on did not help the appellant, and that the question was acte clair so no reference to the CJEU was required.

Disposition: The Court of Appeal dismissed the appeal and refused the application for a preliminary reference to the CJEU.

The appeal was dismissed. The court held that Regulation 30 of the Working Time Regulations 1998 does not empower an Employment Tribunal to award compensation for injury to feelings for breach of Regulation 12; the relevant statutory wording supports awards for pecuniary loss attributable to the employer’s default but not for non-pecuniary loss, and EU law did not require a different interpretation or a reference to the Court of Justice of the European Union.

Appeal from the Employment Appeal Tribunal (Slade J) UKEAT/0017/16/RN (judgment 18 May 2016), which upheld the Employment Tribunal (EJ Zuke) remedies judgment (remedies hearing 22 May 2015, remedies judgment sent 10 August 2015) and the earlier liability findings (judgment sent 24 June 2015). Permission to appeal to the Court of Appeal was granted on 20 December 2016. The Court of Appeal judgment is [2018] EWCA Civ 418.