South Yorkshire Fire and Rescue Service v Mansell

An award for injury to feelings is not confined to whistleblowing detriment. Instead, where Part V of the Employment Rights Act 1996 creates a statutory tort for detriment, the tribunal may award compensation for injury to feelings where justice requires. Whether to make such an award is a question of fact in each case and depends on the nature and gravity of the detriment.

The claimants were firefighters who alleged detriment under section 45A Employment Rights Act 1996 after being moved following refusal to accept a new shift system said to breach the Working Time Regulations. The Employment Tribunal (Leeds) found liability and held in a preliminary hearing that awards for injury to feelings and other non-pecuniary loss could be made under section 49 ERA for Part V detriment. The employer appealed to the Employment Appeal Tribunal on the scope of remedies under section 49 and on related points about EU law and analogous regulations. The central issue was whether injury-to-feelings awards are potentially available for working-time detriment under section 45A.

1. Disposition: The appeal is dismissed. The ET was correct to hold that awards for injury to feelings are potentially available under section 49 Employment Rights Act 1996 in respect of detriment claims under Part V, including section 45A (working time detriment) (see paras [35]-[36]).
2. Statutory scope: Section 49 contains language broad enough to permit awards for injury to feelings in Part V detriment claims. That conclusion follows from established awards in whistleblowing (section 47B) and trade union detriment cases.
3. Characterisation: Breach of a right not to suffer detriment under Part V is a statutory tort which, in the established categories, has been treated as akin to discrimination or victimisation. Section 45A claims are akin to victimisation and so fall within that approach.
4. Principle v. quantum: A distinction must be drawn between (a) the availability of injury-to-feelings awards under section 49 and (b) whether, in any case, such an award should be made and in what amount. The latter is a question of fact for the tribunal.
5. Analogy and consistency: There is no principled basis to exclude particular Part V rights from the potential for injury-to-feelings awards. Parallel domestic regulations and the EU principle of equivalence support a consistent remedial approach for comparable infringements.
6. Secondary points: The Employment Tribunal did not pre-judge remedy; its observations about the possibility of injury to feelings did not prevent a fact-specific assessment.
7. Order: Appeal dismissed. The ET decision as to potential remedies is upheld and the questions of quantum and fact are remitted to the tribunal for determination where necessary.

• Employment Appeal Tribunal: Appeal dismissed; held that awards for injury to feelings may be made under section 49 ERA for Part V detriment, including section 45A (Employment Appeal Tribunal, Soole J, 30 January 2018).
• Employment Tribunal, Leeds: Liability for working-time detriment found; preliminary ruling that non-pecuniary awards including injury to feelings were potentially available (Decision dated 13 April 2017; liability judgment dated 16 December 2015).