Coronavirus: Employer’s resource centre — live guidance available here

Potential personal injury claims possible in Employment Tribunal

BY Ben Brown
Employment Law & HR

In a recent judgement, the EAT held that Employment Tribunals are permitted to award damages for personal injury under the Working Time Regulations 1998 (WTR).

Workers are entitled to an unpaid rest break of 20 minutes if they are working for more than six hours per day and a worker may bring a complaint to the Employment Tribunal if they are not afforded the opportunity to take a rest break. Where the complaint is well founded, the Tribunal must make a declaration of that effect and may award compensation to the worker for any loss suffered. The Regulations state that the amount of compensation awarded must be just and equitable in all circumstances, with regards to:

  • The employer’s failure to allow the worker to exercise the right; and

  • Any loss sustained by the worker which is attributable to the breach.

In this case, the Claimant brought a complaint in the Employment Tribunal claiming that Abellio had refused to permit him to exercise his entitlement to a rest break throughout different periods of employment. The Employment Tribunal dismissed his claim on the basis that there was an absence of a deliberate act of refusal by the employer.

The Claimant appealed to the Employment Appeals Tribunal (EAT) who, found that as a matter of law the employer’s refusal did not have to amount to an active response to a positive request; basically, that denial of the right could take place through the arrangement of the working day. Mr Grange suffered from a bowel related medical condition which caused him discomfort of more than a minor inconvenience and was awarded an award of £750.

This case is significant because it does open the door for workers to claim for personal injury damages in the Employment Tribunal for WTR-related breaches if they have been denied rest breaks and can prove that they have suffered more than a minor inconvenience as a result. It is worthwhile considering the comments made within the judgement that there is no requirement for an outright refusal of permitting a rest break; the Tribunal will look at the arrangement of the working day to determine if the worker is being afforded the opportunity to take a rest break.

To avoid any potential claims of this nature employers must ensure that they provide a rest period for workers to take if their working day lasts six hours or more. Employers cannot force a worker to take the break, however, they must be able to show that they have provided the opportunity to take the rest break. If you require any assistance with WTR issues, please contact your dedicated Employment Solicitor.

© Copyright of Law At Work 2021 Law At Work is part of Marlowe plc’s employee relations division