Under the Working Time Regulations 1998 (WTR), workers are entitled to rest breaks of 20 minutes if they have worked more than six hours. In Santos Gomes v Higher Level Care Ltd, the Court of Appeal held that if an employer fails to provide the proper rest breaks, the worker is only entitled to compensation for the time they have lost calculated on their rate of pay and not to compensation for injury to feelings.
Ms Santos Gomes worked for Higher Level Health Care Ltd from February 2013 until May 2014. In June 2014, she lodged a tribunal claim for compensation for, among other things, failure to allow her rest breaks, which she alleged damaged her health and well-being.
Regulation 12(1) of the WTR states that where an adult worker's daily working time is more than six hours, they are entitled to a rest break. Regulation 12(3) provides that the rest break should be for “an uninterrupted period of not less than 20 minutes”.
Regulation 30(4) of the WTR states that tribunals can award compensation which they consider to be “just and equitable in all the circumstances having regard to –
(a) the employer's default in refusing to permit the worker to exercise his [sic] right, and (b) any loss sustained by the worker which is attributable to the matters complained of”.
Tribunal and EAT decisions
The tribunal agreed that the company had failed to provide Ms Santos Gomes with the 20-minute breaks to which she was entitled under the WTR and at a remedies hearing, decided she should be awarded financial compensation of £1, 220. However, the question then arose as to whether she was also entitled to be compensated for injury to feelings. The judge held that he had no power to make such an award under regulation 30 and Ms Santos Gomes appealed on the basis that awards for injury to feelings were not limited to discrimination cases.
The EAT dismissed her appeal, holding that injury to feelings awards are compensatory and are based on the effect on the claimant and not on the default of the employer. The denial of the right to a rest break was “analogous to claims for breach of contract.” Neither the Working Time Directive nor established principles of EU law required domestic courts to interpret Regulation 30(4) in such a way as to provide compensation for injury to feelings.
Decision of Court of Appeal
The Court of Appeal also dismissed her appeal noting that reference to compensation that was “just and equitable” in section 30(4) did not confer a power on tribunals to award compensation for injury to feelings in a claim for breach of contract just as they did not in unfair dismissal claims.
As the wrong committed by Higher Level Health Care Ltd was the failure to give Ms Santos Gomes a paid break during the day, she therefore had to work for a longer period of time than she was paid for. The natural remedy for that wrong was to make a payment of compensation for that time based on her rate of pay, which is exactly what the tribunal had done.
The case clarifies that injury to feelings cannot be awarded where the employer fails to provide a rest break and that the damages to be awarded is pay for the time that the worker has lost.
Note that in South Yorkshire Fire and Rescue Service v Mansell and ors (weekly LELR 564) the EAT held that the tribunal did have jurisdiction to award compensation under the Employment Rights Act 1996 for injury to feelings where a worker had been subject to a detriment for asserting their rights under the Working Time Regulations.