Injury to Feelings Award

Shiva Shadi, Partner and Head of Employment at Davis Blank Furniss

There was an unexpected outcome in the case of South Yorkshire Fire and Rescue –v- Mansell in which the EAT held that an injury to feelings award could be given for a claim of detriment for asserting working time rights.

The case involved firefighters whose shift system was changed without variation of the collective agreement with their union and resulted in inadequate rest breaks.  All the firefighters refused to work under the new shift system and were transferred to a different depot.  It was found that the transfer amounted to a detriment for asserting their working time rights which were contrary to the Employment Rights Act.

The reason for the award was because the remedy for such a detriment is set by Section 49 of the ERA which is the same section as other detriment cases to which injury to feelings is potentially available.

This would therefore add additional financial risk to companies who fall foul of the Working Time Regulations which results to detriment for employees.

By contrast the Court of Appeal in Gomes –v- Higher Level Care Limited held that injury to feelings could not be awarded under the Working Time Regulations.  The employer provided accommodation and support services for vulnerable young people of this particular employee.  She claimed compensation for failure to allow her rest breaks.  Compensation in such cases is determined on a just and equitable basis under Regulation 30 of the Working Time Regulations, but there is no reference to injury to feelings.

Whilst the Tribunal found the employer had breached the employee’s rights and awarded her  loss of earnings as a result, they held that there was no jurisdiction under the Working Time Regulations to award injury to feelings.

The difference between the two cases here is that one resulted in a detriment and therefore had a remedy under the Employment Rights Act, whereas in this particular case there was no additional detriment, i.e. being moved to a different station.

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