Injury to Feelings in Working Time Rights Cases
Friday 16th February 2018
In the recent case of South Yorkshire Fire and Rescue Service v Mansell and others the EAT considered whether an award for injury to feelings can be made in a claim of detriment for asserting working time rights.
A new shift system was implemented by South Yorkshire Fire and Rescue Service whereby firefighters were required to work a 6-day pattern made up of 2 consecutive 24-hour shifts followed by 4 days off. The shifts were divided into a 12-hour day shift, and 12 hours ‘on call’ at night. In the absence of a variation of the collective agreement between the Fire Service and the Fire Brigades Union, the new shift system breached the Working Time Regulations due to the length of night work and inadequacy of daily rest. Firefighters who did not consent to these breaches were consequently compulsorily transferred to other fire stations
A number of firefighters brought claims against the Fire Service on the basis that their transfer to alternative fire stations constituted an unlawful detriment which they were subjected to as a result of their refusal to opt out of the Working Time Regulations. The ET upheld the claims and upheld the availability of an award for injury to feelings. The Fire Service appealed to the EAT on the basis that compensation for injury to feelings was not an available remedy in a working time detriment claim.
In dismissing the appeal the EAT held that the ET was correct to conclude that a claim for detriment for asserting working time rights amounted to a claim of discrimination and victimisation, and that the remedy for such a claim (as with other detriment claims) may include compensation for injury to feelings.
Comment: The judgment of the EAT should caution employers against taking any action which may be construed as detrimental to its workers when working time rights are in issue, particularly as injury to feelings awards are uncapped. However, the availability of the remedy does not necessarily mean it will be awarded in every case; whether it is appropriate will depend on the circumstances.
