Case update (2): Working time regulations & personal injury

What do we already know?

We updated you in our September 2016 Newsletter Case update (1): Request to rest on the EAT’s decision in Grange v Abellio London Ltd that employees do not need to actually request a rest break (under the Working Time Regulations) before making a claim that their employer has refused rest breaks.

The EAT sent the case back to the Tribunal for it to consider whether as a matter of fact rest breaks had been denied in respect of different time periods.

What’s new?

The above case has been re-considered by the Tribunal and EAT.  The employee, Mr Grange, was awarded £750 for the “discomfort and distress” caused by the employer’s refusal to allow rest breaks over 14 working days.

For further detail please read on.

Summary:  Can employees claim personal injury compensation in the Employment Tribunal where working time breaches damage their health?

Yes, says the EAT in Grange v Abellio London Limited available here.

Facts:  Mr Grange, the employee, was employed by Abellio London Ltd (Abellio). Initially, his working day lasted eight-and-a-half hours with half an hour being unpaid and treated as a rest break. Several years later his working day was reduced to eight hours, so that employees would work without a break and finish half an hour earlier.  This is despite the fact that the Working Time Regulations (WTR) entitle workers to an unpaid rest break of 20 minutes when working for more than six hours per day.

In 2014 the employee raised a grievance stating that he had been forced to work without a meal break for the previous two and a half years which had affected his health.

Following his grievance being heard and rejected, the employee brought a Tribunal claim that Abellio had refused to permit him to exercise his entitlement to a rest break throughout different periods of his employment and had breached the WTR.

The Tribunal dismissed his claim on the basis that there was no deliberate act of refusal by the employer.

Mr Grange appealed successfully to the EAT which held that there could be a refusal if the employer makes working arrangements that fail to allow workers to take rest.

The EAT sent the case back to the Tribunal for it to consider whether as a matter of fact rest breaks had been denied in respect of different time periods.

At this hearing the Tribunal held that for jurisdictional issues there were only 14 days in which Abellio was in breach of the WTR. It heard evidence from Mr Grange (who didn’t provide medical evidence) that, due to a bowel related medical condition, the lack of rest breaks had caused discomfort that was more than a minor inconvenience.

The Tribunal considered that a just and equitable award was £750 for the “discomfort and distress” caused by the employer’s refusal to allow rest breaks over 14 working days

Both parties appealed; Mr Grant arguing that limiting his claim in time had not been previously raised and Abellio on the basis that the WTR does not allow an award of damages for personal injury and, alternatively, that £750 was an excessive award.

The EAT dismissed Mr Grange’s appeal on jurisdiction because, once raised either by a party or the Tribunal itself, the Tribunal is bound to consider a question of jurisdiction.

It also dismissed Abellio’s cross-appeal in respect of the damages award noting that there is no case law or legislation dealing with rest breaks which preclude an award of damages for personal injury.

Neither did the EAT view the award as excessive. Low value claims could be dealt with on a common-sense basis, without the need for medical evidence. Mr Grange had given evidence and been cross examined on how the lack of rest breaks had affected his health so the Tribunal had enough evidence to make an award of £750 for ‘discomfort and distress’.

Implications: Employers should be aware that, where an employee has suffered any impact on his or her health as a result of a failure to allow rest breaks, or any other breach of the WTR, employers could be liable for damages. In Mr Grange’s case, the compensation awarded was relatively modest. However, it is possible that, in cases where significant injury has been caused, the damages could be much more significant. Employers should therefore ensure that work is organised so that employees can enjoy the daily and weekly rest breaks to which they are entitled, as well as taking their annual leave.