South Yorkshire Fire and Rescue Service v Mansell

Compensation for injury to feelings is potentially available under section 49 of the Employment Rights Act 1996 for every detriment claim in Part V, including a working-time detriment claim under section 45A. A Part V infringement is a statutory tort and is akin, in this respect, to discrimination or victimisation.

The availability of the remedy is distinct from whether it should be awarded. That depends on the facts and gravity of the individual case. No principled distinction exists between the individual protected rights in Part V for this purpose.

Firefighters who declined to volunteer for a new shift system were compulsorily transferred to other stations. They succeeded in complaints that they had suffered working-time detriment contrary to section 45A of the Employment Rights Act 1996.

At a preliminary remedy hearing, the Employment Tribunal held that compensation for non-pecuniary loss, including injury to feelings, was potentially available under section 49. The employer appealed the ruling on injury to feelings. It accepted during the appeal that other non-pecuniary loss could be recovered.

The central issue was whether section 49 permits an award for injury to feelings for a successful section 45A complaint.

1. Appeal dismissed. Section 49 of the Employment Rights Act 1996 contained no bar to an award for injury to feelings for a working-time detriment claim under section 45A.

2. A breach of the Part V right not to suffer detriment is a statutory tort. The established treatment of whistleblowing and trade-union detriment claims showed that injury to feelings may be compensated under section 49. Such claims are distinct from contractual claims, or claims properly analogous to contractual claims, for which the common-law restriction applied.

3. The Tribunal had to distinguish between potential legal availability of compensation and the factual decision whether compensation should be awarded, and in what amount. Injury to feelings would not follow automatically from a Part V infringement.

4. The protected right or act, rather than a personal status or protected characteristic, was the material basis for the analogy with discrimination and victimisation. Section 45A claims were akin to victimisation claims. There was no principled basis for confining injury-to-feelings awards to particular Part V rights such as whistleblowing.

5. The Employment Tribunal had not pre-judged remedy. Its observation that significant injury to feelings could be envisaged was expressly qualified by the need to decide any award on the facts of each case.

• Employment Appeal Tribunal: dismissed the employer's appeal and upheld the Employment Tribunal's preliminary ruling that injury-to-feelings compensation was potentially available.
• Employment Tribunal, Leeds: by a decision dated 13 April 2017, held that compensation for injury to feelings and other non-pecuniary loss was potentially available for the successful section 45A complaints.