In February of this year we reported the EAT’s decision in South Yorkshire Fire & Rescue Service v. Mansell & Ors, which held that an award for injury to feelings could be made under Employment Rights Act 1996 S. 45A where a claim for detriment succeeds as a result of a breach of the Working Time Regulations 1998 (WTR) as such a detriment is a statutory tort (wrongdoing), like discrimination. In Gomes v Higher Level Care Limited, the Court of Appeal has ruled that where a claim for a breach of the WTR is made just under the Regulations themselves and an award is made under Reg 30 of the WTR, then no award can be made for injury to feelings as the wrong complained of in such a case is akin to a breach of contract. Therefore, the award can only put the Claimant back in the same financial position as if the breach had not occurred, which here was compensation for not being allowed to take a 20-minute rest break for well over 12 months. As the CA pointed out, the two cases can be distinguished because one is a breach of contract and the other is a statutory tort.

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