The Employment Appeal Tribunal has ruled that personal injury compensation is available to employees for breaches of in-work rest break entitlements under the Working Time Regulations (WTR) 1998.
In Grange v Abellio London Ltd, the EAT upheld the tribunal’s award of £750 to the employee following the employer’s failure to comply with the WTR to provide rest breaks.
The decision confirms that personal injury resulting from a breach of the WTR can lead to compensation for employees. Injury to feelings awards, however, remain beyond the scope of the WTR, following the Court of Appeal’s decision in Santos Gomes v Higher Level Care Ltd last year.
The facts of Grange The claimant, Mr Grange, was a bus driver employed by Abellio London Ltd. Mr Grange had not been permitted to take his twenty-minute rest break entitlement on fourteen days over a ten-week period. This was in breach of Regulation 12 of the Working Time Regulations 1998.
It was agreed that the employee had not suffered financial loss from the lack of work breaks, as he had worked a shorter day in lieu of the rest breaks. However, the impact of having no work breaks and failure to eat properly had caused him discomfort and distress due to an underlying medical condition. On this basis, he was awarded £750 by the tribunal.
Abellio appealed the tribunal’s decision, arguing that working time compensation could not include an award for personal injury, following the decision in Santos Gomes. It also argued that the evidence did not provide an adequate basis for compensation and the award was ‘manifestly excessive’ given the brief duration of the breach.
The employer’s appeal was dismissed by the EAT.
It held that the decision in Santos Gomes did not exclude compensation for personal injury suffered as a result of the breach of the rest break provision in the Regulations. Mr Grange was held to have suffered discomfort relating directly to his medical ailment since the compensation linked to physical injury and not feelings.
On a further point, the EAT was satisfied that the medical evidence provided by the claimant was sufficient for a decision to be made and given the low value of the claim, seeking expert medical opinion would have been disproportionate.
Loss of rest breaks and injury to feelings
In Gomes, the Court of Appeal held that there was no jurisdiction under the WTR for the tribunal to award compensation for injury to feelings for loss of rest breaks. As such, employees cannot claim injury to feelings resulting from the employer’s failure to provide rest breaks.
It stated the appropriate remedy was compensation for loss of earnings for the length of the missed rest breaks, akin to a breach of contract claim.
Compensation is however available for injury to feelings for claims brought under the Employment Rights Act 1996. Such claims could relate detriment resulting from issuing proceedings against the employer to enforce a WTR right, disciplinary action because of refusal to work through rest break, refusal to work more than 48 hours a week and are not promoted as a result.