In Grange v. Abellio London Ltd EAT/0304/17 the EAT has held that personal injury compensation is available for a failure to provide rest breaks under the Working Time Regulations 1998 (WTR).
The WTR provide that, if a claim is well founded, a tribunal can award a compensation sum that it considers is just and equitable considering the employer’s default and any loss suffered by the worker. The issue of whether to award injury to feelings in working time cases has been before the courts before. In South Yorkshire Fire & Rescue Service v. Mansell and others UKEAT/0151/17, the EAT held that, in a claim brought for detriment in a working time case, it had jurisdiction to make an award for injury to feelings. However, in Gomes v. Higher Level Care Limited [2018] EWCA Civ 418, the Court of Appeal held that damages were not recoverable for injury to feelings for failure to provide rest breaks under WTR.
In Grange, Mr Grange’s earlier claim that his employer had refused to let him exercise his entitlement to a rest break failed at the employment tribunal. Mr Grange appealed to the EAT. The EAT found, on a technical interpretation, that Mr Grange’s employer’s refusal did not have to be an active response to a positive request. The denial of the right could take place through the employer’s arrangement of Mr Grange’s working day. The case was remitted to the employment tribunal. Abellio conceded that on 14 different working days it had denied Mr Grange rest breaks. Due to a discrete bowel condition that Mr Grange had, the lack of rest breaks caused him discomfort. On this basis, the tribunal considered that a just and equitable award was £750.
Mr Grange appealed on a separate jurisdiction point, but Abellio cross-appealed. It argued that the WTR do not allow an award of damages for personal injury. The award of £750 amounted to an award for personal injury. In the alternative, it argued the award of £750 was excessive.
The EAT dismissed Abellio’s cross-appeal holding that employment tribunals can award damages for personal injury under the WTR. It made the following points:
- Gomes was not authority for the proposition that damages for personal injury could not be awarded for a breach of WTR. Technically Gomes focused on the award for injury to feelings, not personal injury damages.
- The court in Gomes did not express disagreement with a judicial comment at EAT level that seemed to reserve the possibility that personal injury damages were available.
- Since it is clear from EU authority that the object of the Working Time Directive is to protect the health and safety of the worker, it would be natural for WTR to allow such awards.
The EAT also held that, due to the low value of the award, it could deal with such a case on a common-sense basis, without the need for medical evidence.
Conclusion
We do not currently know whether Abellio will appeal the decision. Therefore, as matters stand this case opens the door for workers seeking personal injury damages. A tribunal may award damages where a worker has been denied a rest break and the worker can prove that they have suffered more than a minor inconvenience as a result. In low-value claims, it would also appear that medical evidence is not needed and the tribunal will make a common-sense assessment of loss.
Employers should continue to ensure that their working arrangements enable a worker to take the breaks that they are entitled to, regardless of whether a worker requests a break.
