Working Time Regulations breach merits injury to feelings award, EAT rules

9 Feb 2018 By Emily Burt

Experts say employees with working time detriment can claim discrimination damages in future

Yorkshire firefighters have won an employment tribunal appeal entitling them to an award for injury to feelings, upholding a tribunal finding that they had suffered discrimination when their shifts were changed.  

The appeal was brought by their employer, the South Yorkshire Fire and Rescue Service, at the Employment Appeal Tribunal (EAT). Judgment was published on 30 January

The firefighters lodged a claim at the employment tribunal in 2015 claiming a breach of the Working Time Regulations after a new work shift system was introduced that affected their working hours. 

Under the close proximity crewing (CPC) system, the firefighters would work for consecutive 24-hour shifts, each divided into a 12-hour day-shift and 12 hours on-call at night, which would be followed by four days off. The on-call hours would be spent at or near the station on the respondent’s premises. 

The firefighters were members of the Fire Brigades Union, which had a collective agreement with the South Yorkshire Fire and Rescue Service, outlining the terms and conditions of their employees in a bargaining unit. 

They claimed that, without agreed variation, the introduction of CPC shifts breached the Working Time Regulations, which limit working hours to an average of 48 hours a week and 11 consecutive hours of rest in any 24-hour period. As the firefighters were unwilling to volunteer for CPC, they were compulsorily transferred to other stations. 

The firefighters successfully claimed the South Yorkshire Fire and Rescue Service had breached part of the Employment Rights Act, which states: “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker [...] refused (or proposed to refuse) to comply with a requirement that the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998” – or by refusing to forgo a right conferred by them.

The firefighters said claims for a working time detriment arising from trade union membership or activities were discriminatory.

The tribunal found that the reason significant injury to feelings may flow in a case such as this is that the less favourable treatment has been suffered on the grounds that the firefighters were part of a group identified by a particular defining characteristic – “refusing to acquiesce in a breach of their employment rights. That is the essence of discrimination.”

One remedy for successful claimants is financial compensation by the employer, reflecting the infringement of the employees’ working rights, and any resulting losses.

Alongside financial loss, the firefighters claimed for the suffering of increased journey times, interference with care obligations, a loss of leisure and family time, and disruption to their work patterns and working relationships. 

The issue in this case was which remedy was available to the firefighters who successfully claimed they had suffered a detriment following a breach of the Working Time Regulations by their employer, and their related refusal to volunteer for a new shift system, resulting in their transfer to other fire stations, Barry Stanton, head of employment law at Boyes Turner, told People Management

The argument on remedy was whether, in this type of detriment claim, there could be an award for injury to feelings. The parties accepted that detriment claims under whistleblowing provisions – and detrimental treatment arising from trade union membership – “could attract such awards, as claims under section 45a fall within the same part of the Employment Rights Act as do a series of detriment claims”, Stanton added. 

The South Yorkshire Fire and Rescue Service sought to overturn the tribunal’s unanimous decision that the breach of the Working Time Regulations had amounted to discrimination. 

Speaking on behalf of the organisation, Mr David Mitchell argued that the section 45a protection under the Employment Rights Act should not be treated as discrimination, as the decision to transfer individuals did not depend on the ‘specific characteristics’ of each claimant. The detriment and losses were the denial of a right, rather than discrimination. 

However, the EAT agreed that the breach of Working Time Regulations amounted to discrimination, and therefore that the firefighters were eligible for remedy. 

“I see no principled basis to distinguish between the individual rights conferred [by part V of the Employment Rights Act] for the purpose of awards for injury to feelings,” Mr Justice Soole said. 

“In each case, breach of the right is a statutory tort and the claim is akin to discrimination and victimisation. Whether an award should be made in a particular case, and if so in what amount, is simply a question of fact for the tribunal in the particular case.” 

Stanton said: “The EAT concluded that injury to feelings awards should not be limited to whistleblowing claims but could potentially extend to other claims for detriment in part V of the Employment Rights Act.”

“The effect of this decision is potentially that those who suffer a detriment falling within part V – which will include detriment relating to jury service, health and safety cases, Sunday working for shop workers, those who have taken leave for family reasons or made flexible working requests, trustees of occupational pension schemes and employee representatives – will all be able, if their claim succeeds, to pursue damages including an award for injury to feelings. 

“Inevitably, there will be cases falling within part V where attempts are now made to recover an injury to feelings award. That might be particularly significant where a detriment is suffered but where the detriment is not monetary."

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