An employee’s failure to exhaust the employer’s grievance procedure was not relevant...
Detriment and injury to feelings awards
South Yorkshire Fire & Rescue Service v Mansell
Injury to feelings compensation can be awarded in detriment claims under the Working Time Regulations.
The law
In working time cases, all workers are protected from being subjected to a detriment by their employer (s. 45A of the Employment Rights Act 1996) on the grounds that the worker:
- refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998 (WTR)
- refused (or proposed to refuse) to forgo a right conferred on them by the WTR
Background
Mr Mansell and his colleagues are firefighters and members of the Fire Brigades Union (FBU) which had a collective agreement with the employer. It introduced a new duty system called Close Proximity Crewing (CPC). Without variation of the collective agreement, the CPC involved a breach of WTR. When Mr Mansell and his colleagues refused to volunteer for CPC, they were compulsorily transferred to other stations. They alleged breach of s. 45A relating to the right not to suffer detriment. The detriment they alleged had been suffered (in addition to financial loss) included increased journey times; interference with care obligations; loss of free time, leisure time, and family time; the loss of existing congenial working arrangements; and disruption to their work patterns and working relationships.
At a preliminary hearing the tribunal held that awards for non-pecuniary loss, including injury to feelings, were potentially available. The employer appealed, accepting that there could be awards for non-pecuniary loss but not for injury to feelings.
EAT decision
The EAT dismissed the employer’s appeal, holding that all claims for detriment under Part V of the Employment Rights Act are akin to claims of discrimination and victimisation and therefore injury to feelings can be awarded.
Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2018/0151_17_3001.html
Comment
It had been generally understood that injury to feelings damages were available in the following claims: discrimination claims, whistleblowing detriment claims and trade union membership or activities detriment claims.
This decision now confirms that injury to feelings damages are potentially available in all of the detriment claims listed in Part V of the Employment Rights Act 1996, i.e. 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.
However, whether an award for injury to feelings should be made, and how much it should be, will depend on the facts of the case.
There is no statutory definition of ‘detriment’ but it may include such things as: a failure to offer opportunities for training, development or promotion; bullying, harassment or ostracism; blocking access to resources; unrequested reassignment or relocation; demotion; suspension; disciplinary sanction or dismissal and victimisation