Viviana Santos Gomes v Higher Level Care Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kitchin,Lord Justice Singh,Lady Justice Sharp |
| Judgment Date | 13 March 2018 |
| Neutral Citation | [2018] EWCA Civ 418 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2016/2319 |
| Date | 13 March 2018 |
[2018] EWCA Civ 418
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mrs Justice Slade
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Kitchin
Lady Justice Sharp
and
Lord Justice Singh
Case No: A2/2016/2319
Mr Daniel Barnett and Ms Georgina Churchhouse (instructed by Iliffes Booth Bennett) for the Appellant
Mr Matthew Pascall (instructed by Dexter Henry & Co Solicitors) for the Respondent
Hearing date: 8 February 2018
Judgment Approved
Introduction
This appeal raises a short but important question of law as to whether the Employment Tribunal has the power to make an award of compensation for injury to feelings where there has been a breach of the Working Time Regulations 1998 (SI 1998 No. 1833) (“the Regulations”). Both the Employment Tribunal sitting at London South (“ET”) and the Employment Appeal Tribunal (“EAT”) held that there is no such power. The Appellant submits that that was wrong in law.
It is further submitted on her behalf that the contrary construction of the Regulations is required in order to conform to European Union (“EU”) law. In so far as the issue is not acte clair it is submitted on behalf of the Appellant that this Court should refer the question of law to the Court of Justice of the European Union (“CJEU”) for a preliminary ruling.
Permission to bring this appeal was granted on the papers by Lewison LJ in an order sealed on 20 December 2016.
Factual Background
The Respondent provides accommodation and support for vulnerable young people. The Appellant was employed by the Respondent from 1 February 2013 until 28 May 2014.
On 3 June 2014 the Appellant filed her claim in the ET. She claimed compensation for, among other things, failure to allow her rest breaks, which she alleged damaged her health and well-being.
In the judgment sent to the parties on 24 June 2015 the ET (EJ Zuke) upheld some of those claims, including the one brought under the Regulations. The ET found that the Respondent had failed to provide the Appellant with the 20 minute rest breaks required by the Regulations.
On 22 May 2015 the ET held a remedies hearing. The parties were agreed that there should be compensation for pecuniary loss of £1, 220 under Regulation 30 of the Regulations. However, there was a dispute between the parties about whether the Appellant was also entitled to recover compensation for injury to feelings. In a judgment sent to the parties on 10 August 2015 EJ Zuke rejected the contention made on behalf of the Appellant that there should be compensation for injury to feelings. He held, at paras. 37–50 of his judgment, that the ET has no power to make such an award in cases of this kind.
The Appellant's appeal to the EAT was dismissed by Slade J in a judgment given on 18 May 2016.
Material Legislation
The Working Time Regulations 1998 contain the following material provisions.
Regulation 12(1) provides that, where an adult worker's daily working time is more than 6 hours, he is entitled to a rest break. Para. (3) provides that, subject to the provisions of any applicable collective agreement or workforce agreement, the rest break provided for in para. (1) is an uninterrupted period of not less than 20 minutes.
Regulation 30, which is headed “Remedies”, provides, in para. (1), that a worker may present a complaint to an Employment Tribunal that his employer has refused to permit him to exercise any right he has under (for present purposes) Regulation 12(1). The Regulation continues:
“(3) Where an employment tribunal finds a complaint under paragraph (1)(a) well-founded, the tribunal –
(a) shall make a declaration to that effect, and
(b) may make an award of compensation to be paid by the employer to the worker.
(4) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to –
(a) the employer's default in refusing to permit the worker to exercise his right, and
(b) any loss sustained by the worker which is attributable to the matters complained of.
…”
The Regulations give effect in domestic law to Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (“the Directive”).
Of particular relevance is Article 4 of the Directive, which provides that:
“Member states shall take the measures necessary to ensure that, where the working day is longer than 6 hours every worker is entitled to a rest break, the details of which, including duration and the terms on which it is granted, shall be laid down in collective agreements or agreements between the two sides of industry or, failing that, by national legislation.”
The Judgment of the ET
As I have mentioned the remedies judgment of EJ Zuke was sent to the parties on 10 August 2015. The present issue was considered at paras. 31–50 of the judgment. EJ Zuke accepted the submission made on behalf of the Appellant that the issue of law which presently arises had not been the subject of previous binding authority in the EAT and so it was open to the ET to decide whether Regulation 30 permits an award of compensation for injury to feelings: see para. 34 of his judgment.
It was submitted on behalf of the Appellant that the only possible compensation an employee could be awarded under Regulation 30(4)(a), in the absence of any actual pecuniary loss, would be compensation for injury to feelings. It was submitted that any other interpretation would make Regulation 30(4)(a) redundant: see para. 35 of the judgment. EJ Zuke rejected that submission at para. 36:
“… In my view the focus on s.30(4)(a) is ‘ the employer's default in refusing to permit the worker to exercise his right’. In other words, in assessing compensation the Tribunal is required to consider the reasons why the employer failed to comply with the relevant regulation, in this case regulation 12. That would include, for example, whether the employer had knowingly breached the relevant regulation; whether it had brazenly refused a request for a rest break or holiday or holiday pay, or whether its default was inadvertent, due to a mistake, or to a genuine but mistaken belief about the employee's entitlement.” (Emphasis in original)
It was next submitted on behalf of the Appellant that the principle of conforming construction under EU law should lead to the interpretation of the Regulations that there was jurisdiction to award compensation for injury to feelings. EJ Zuke rejected that submission at para. 39 of the judgment. He said:
“In my view there is nothing in the Directive that supports the proposition that its proper implementation requires member states to provide that a worker is entitled to compensation for any injury to their feelings that they may experience as a result of a failure to comply with the terms of the Directive.”
It was further submitted on behalf of the Appellant that the absence from Regulation 30 of any express provision excluding compensation for injury to feelings implies that such an award is permissible under Regulation 30: see para. 42 of the judgment. That submission was also rejected by EJ Zuke: see paras. 43–49. In that passage EJ Zuke drew a distinction between anti-discrimination legislation and the current Regulations. He concluded, at para. 49:
“The Working Time Regulations are designed to protect the health and safety of workers. They are not an anti-discrimination provision. They do not contain any reference to less favourable treatment in comparison with some other status or characteristic.”
EJ Zuke concluded on this issue as follows, at para. 50:
“I conclude that the absence of an express prohibition of an award for injury to feelings does not imply that such an award is permissible. In my view, if Parliament had intended that such an award were permissible, it would have made express provision to that effect, as it did in the Equality Act 2010 and its predecessors.”
The Judgment of the EAT
As I have mentioned the judgment of the EAT was given by Slade J on 18 May 2016.
Slade J's discussion of the domestic law issue is at paras. 44–60 of her judgment. At para. 47 she observed that it is well established that awards for injury to feelings are compensatory, not punitive: see Armitage and Others v Johnson [1997] IRLR 162 at para. 27 (Smith J, as she then was). Slade J went on to state that:
“… Compensation for injury to feelings is based on the effect on the claimant not on the default of the perpetrator.”
Slade J considered a number of earlier decisions by the EAT (which were also cited before this Court and to which I will return later) and concluded that they were all concerned either with detriment on trade union grounds or with whistleblowing. She concluded that those decisions of the EAT do not support a construction of Regulation 30(4)(a) which would enable an Employment Tribunal to make an award for injury to feelings in the present context.
At para. 52 of her judgment Slade J said that the express exclusion of compensation for injury to feelings from awards under certain other legislation, for example the Part-Time Workers Regulations and the Agency Workers Regulations, does not indicate that compensation for injury to feelings is generally available in statutory employment claims such as under the present Regulations. She said that claims under those sets of Regulations are all types of discrimination. As had been explained by the EAT in earlier decisions, compensation for injury to feelings may be available in certain types of discrimination cases. At para. 54 Slade J said that the Appellant had been unable...
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