Failure to provide rest breaks

An employee (and in fact a worker!) can bring a claim in the Employment Tribunal for a failure to provide rest breaks under the Working Time Regulations 1998. In practice stand-alone claims are rare but they can sometimes form the basis of a factual matrix with other claims or which support other claims. Regulation 30 of the WTR 1998 provides the remedy for such claims which requires the tribunal to focus on the employer’s default, in refusing to permit the worker to exercise the relevant right, and any economic loss sustained by the worker.

In the recent case of Gomes v Higher Level Care Ltd, the Claimant was entitled to compensation after her employer failed to provide her with 20-minute rest breaks in her shifts which exceeded 6 hours in length. This was a direct breach of Regulation 12 (1) of the Working Time Regulations 1998. However, the EAT has held that compensation for injury to feelings is not available for a failure to provide rest breaks under the Working Time Regulations 1998 because there was no express statutory basis for an award of this type. The EAT rejected a series of arguments to the effect that either UK or EU law required compensation to be paid for injury to feelings, noting that compensation to a worker for a breach of the entitlement to rest breaks was akin to a claim for breach of contract, although an award takes into account any loss sustained by the worker and the default of the employer in not allowing rest breaks. The EAT noted that a claim for compensation for damage to health might be made, e.g. if a worker were made ill by a lack of rest breaks. Nothing in the Directive or EU law provides for compensation for injury to feelings for this right, nor does UK law.