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Compensation
[ch 4: pages 116-117]It is automatically unfair to dismiss an employee for asserting a statutory right such as the right to a rest break (see Chapter 10: Automatically unfair dismissal), but only if the dismissal is for asserting the statutory right, and not for some other reason:
Two care workers were dismissed for falling asleep during their shift. They argued that they had been automatically dismissed for asserting their working time right to a break. Their claim failed. Falling asleep was not the same as asserting the right to take a rest break, even though this employer was breaching its duty to provide rest breaks under the WTRs.
Ajayi v Aitch Care Homes (London) Ltd [2012] UKEAT/0464/11
Compensation for injury to feelings can be awarded in a claim for detriment for asserting working time rights (sections 45A and 48, ERA 96):
A new shift system was imposed on a group of fire fighters in breach of a collective agreement with the Fire Brigades Union. The new shift system required personnel to be on duty at the station for 96 hours over four days. When the fire fighters all refused to work under the new system, they were forcibly displaced to another station. The EAT agreed with the tribunal that the transfer was a detriment for asserting working time rights for which compensation for injury to feelings could be awarded.
South Yorkshire Fire & Rescue v Mansell [2018] UKEAT 0151/17/3001
By contrast, in a claim for compensation for refusal to permit a worker to take a break under regulation 30, WTR, (including daily and weekly breaks, compensatory rest and annual leave), compensation is limited to the value of the wages for the working time that should have been spent on the break. No award for injury to feelings is available for this type of claim (Viviana Santos Gomes v Higher Level Care Limited [2018] EWCA Civ 418). Occasionally, it might be possible to claim compensation for personal injury under regulation 30(4)(b), WTR, for example, if the employer repeatedly refuses rest breaks leading to exhaustion and ill-health, but this is untested.
Employers also owe duties under contract and tort not to require employees to work long hours that risk damage to health (Johnstone v Bloomsbury Health Authority [1991] IRLR 118). Working regularly for over 48 hours a week can also be relevant evidence in a claim for psychiatric injury based on workplace stress (Hone v Six Continents Retail Limited [2006] IRLR 49). See also Chapter 3, page 78.
A failure to follow the Health and Safety Executive Management Standards for Workplace Stress, especially after being reminded of these by a union, can be significant. There is information on the website of the Health and Safety Executive and in LRD’s annual guide for reps, Health and Safety Law at Work.
In the following case, a requirement for a driver to work without a reasonable break was a breach of contract:
Immediately on his return from a nine-day overseas driving job, Mr Owen was told to do another long-distance job. He refused, explaining that he had not had enough time off between trips, and was dismissed. The EAT agreed that there was an implied term entitling Owen to a reasonable break before he undertook more driving duties. The requirement to work another long shift with inadequate time off was an unreasonable order and a breach of contract.
NWT Freight Forwarding v Owen EAT/0643/01