In Gomes v. Higher Level Care Ltd
UKEAT/0017/16 the EAT held the claimant could not recover
losses for injury to feelings after her employer had breached
regulation 12(1) of the Working Time Regulations 1998 (WTR).
Regulation 12(1) provides for rest breaks for workers.
The ET had awarded the claimant £1,220 in compensation for
the WTR breach. However, it rejected the claimant's claim for
injury to feelings compensation for the damage the failure had
caused to her health and wellbeing. The ET held the claimant had no
entitlement under regulation 30 of the WTR.
The claimant appealed to the EAT arguing that regulation
30(4)(a) of the WTR did not preclude an injury to feelings award,
and that awards were not restricted to discrimination provisions.
She asserted the judge at first instance had wrongly found there
was nothing in the European Working Time Directive calling for
injury to feelings awards to be available for breaches of the
Directive. She also asserted that, if injury to feelings awards
were not available under regulation 30(4) of the WTR, the remedy
provided by the WTR was ineffective for EU law.
The EAT noted that, in discrimination awards, ETs do not award
compensation based on the employer's default but based on the
effect on the claimant. Conversely regulation 30(4)(a) WTR refers
directly to the employer's default. The EAT did not accept
that, because the legislation did not exclude injury to feelings
awards, they were available. The EAT could not justify what it
considered an unsupported and strained interpretation of the WTR to
enable a claimant to recover injury to feelings loss.
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