Grange v Abellio London Ltd

An employment tribunal is bound to consider an arguable issue as to its jurisdiction, even where the issue was overlooked earlier and the case has been remitted for reconsideration. A party cannot confer jurisdiction by waiver, estoppel or consent.

Compensation under regulation 30(4) of the Working Time Regulations 1998 may include loss caused by personal injury resulting from refusal of statutory rest breaks, although it does not permit compensation for injury to feelings. In a modest claim, the tribunal may assess such injury on the evidence before it without expert medical evidence or detailed reference to valuation guidelines.

Mr Grange, a bus driver and roadside controller employed by Abellio London Ltd, claimed that he had been denied statutory rest breaks contrary to regulation 12 of the Working Time Regulations 1998. His original claim was dismissed on the basis that a deliberate refusal was required. On appeal, the EAT held that refusal could arise from working arrangements which denied the right and remitted the case to the employment tribunal.

On remission, Abellio raised for the first time that claims before 5 July 2014 were out of time under regulation 30(2). The tribunal accepted that argument and awarded £750 for the residual breaches. Mr Grange appealed on jurisdiction. Abellio cross-appealed against the compensation, raising injury to feelings, personal injury, evidential sufficiency and quantum.

1. Jurisdiction and remission. The appeal was dismissed. Once an arguable issue is raised before an employment tribunal as to whether it has jurisdiction to entertain a claim, the tribunal must determine it. If it concludes that jurisdiction is absent, the claim ends. The position is unaffected by the respondent’s earlier failure to raise the issue, or by waiver, estoppel or consent. A remission cannot confer jurisdiction which the tribunal does not possess.
2. The authorities concerning the scope of a remission and the taking of new points on appeal did not alter that conclusion. Radakovits v Abbey National Plc and Rogers v Bodfari (Transport) Ltd were decisive. The tribunal therefore correctly considered whether the relevant complaints were within regulation 30(2) of the Working Time Regulations 1998. The limitation issue was not pursued further on appeal.
3. Compensation. The cross-appeal was dismissed. Following Santos Gomes v Higher Level Care Ltd, regulation 30(4) did not permit an award for injury to feelings. The tribunal’s reference to distress was part of its assessment of physical discomfort and did not constitute a freestanding award for injured feelings.
4. The Court of Appeal’s decision in Santos Gomes did not exclude compensation for personal injury caused by breach of the rest-break provisions. Its reasoning focused on injury to feelings and did not determine personal injury. The protective health and safety purpose of the Working Time Directive supported that interpretation.
5. The tribunal had sufficient evidence of Mr Grange’s medical condition, Abellio’s knowledge of it and the effect of missed breaks. In a low-value claim, expert medical evidence and detailed valuation guidance were not essential. The award of £750 was not an impermissible palm-tree assessment or manifestly excessive.
6. Both the appeal and cross-appeal were dismissed.

• Employment Appeal Tribunal: The original dismissal of the rest-break claim was overturned and the matter was remitted to the same employment tribunal for reconsideration: [2017] ICR 287.
• Employment Tribunal: The tribunal held that claims before 6 July 2014 were out of time under regulation 30(2) of the Working Time Regulations 1998, upheld the residual claims and awarded £750.
• Employment Appeal Tribunal: The appeal and cross-appeal were dismissed.