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Awards for Injury to Feelings are extended to Working Time cases

The Employment Rights Act 1996 provides "protection from suffering detriment in employment" (but not for job applicants) in a number of circumstances and to a number of individuals.  They include jury service; health and safety cases; Sunday working; working time cases; trustees of occupational pension schemes; employee representatives; employees exercising the right to time off work for study or training; protected disclosures; leave for family and domestic reasons; tax credits; flexible working; studying and training; and employee shareholder status.

In the recent case of South Yorkshire Fire & Rescue Service v Mansell the EAT confirmed that an award for Injury to Feelings can be made by ETs in claims of working time detriment brought under the Employment Rights Act 1996.

In this case a new shift system was introduced by the South Yorkshire Fire & Rescue Service. The new system was in breach of the Working Time Regulations 1998 (“WTR”) in relation to the length of night work and not providing sufficient daily rest for the firefighters.

On introduction of this new shift pattern, the firefighters that refused to work this shift pattern and sign a WTR opt out were transferred to another fire station. As a result of this move the firefighters claimed that they had been subjected to a detriment.  They sought financial loss as a result of the transfers but also non-financial loss including injury to feelings, increased journey times, loss of free time, leisure time, family time, the loss of existing working arrangements and general disruption to their work.

A number of firefighters brought claims against the Fire Service on the basis that there had been a breach of the WTR as their transfer to alternative fire stations constituted an unlawful detriment which they were subjected to as a result of their refusal to opt out of the WTR.  The ET upheld the claims and made an award for Injury to Feelings.  The Fire Service appealed to the EAT on the basis that compensation for Injury to Feelings was not an available remedy in a working time detriment claim and the EAT did not have jurisdiction to hear the claims.

The EAT dismissed the appeal.  It held that the ET was correct to conclude that a claim for detriment for asserting working time rights amounted to a claim of discrimination and victimisation, and that the remedy for such a claim (as with other detriment claims) may include compensation for Injury to Feelings.

What does this mean for you or your business?

Employers will be aware that Injury to Feeling awards are awarded in discrimination cases. However this case now extends such awards to WTR cases. As awards for injury to feelings are uncapped in compensation, this judgment should act as a warning to employers if they are thinking of taking any action which may be construed as detrimental when dealing with the WTR and the potential liability of an award for Injury to Feelings.

What do you need to be doing now?

If you  are  looking to make changes to working time arrangements or systems of working  you should be wary of this case and ensure any proposal or introduction of a different method of working is compliant with the WTR, other-wise it could result in costly litigation and damage to your business reputation.

 

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.

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