Can you receive compensation for injury to feelings in all detriment claims?

Year Published: 2018

Compensation for injury to feelings may now be awarded in a far wider list of claims than previously thought following a decision made by the Employment Appeal Tribunal (EAT).

Previously, compensation for injury to feelings has only been available in discrimination claims, whistleblowing detriment claims, and trade union membership or activities detriment claims. However, the EAT’s ruling in the case of South Yorkshire Fire and Rescue Service (SYFRS) V Mansell and Ors means that compensation for injury to feelings is potentially available in all of the detriment claims listed under Part V of the Employment Rights Act 1996 (ERA).

What’s happened in this case?

The claimants were a group of firefighters employed by SYFRS. A new shift system was introduced at their station, without variation of the collective agreement with their union, and which involved a breach of their rights under Regulation 6 (length of night work) and 10 (daily rest) of the Working Time Regulations (WTR). The affected firefighters claimed that the compulsory transfer was a detriment that they had suffered for refusing to accept a breach of their rights.

Their claims succeeded. At the preliminary hearing, the tribunal held that compensation for non-financial loss, including injury to feelings, was potentially available. It accepted that such an award would not be available at common law for breach of contract (i.e. a wrongful dismissal claim) nor for a statutory claim for unfair dismissal, and concluded that, since a breach of the WTR is equivalent to a breach of contract, such a claim could not attract an injury to feelings award. However, the tribunal held that a complaint under S.45 of the ERA (working time detriment claims) amounted to a claim of discrimination and of victimisation and in the tribunal’s view, this meant that a working time complaint was of the same nature as a whistleblowing or trade union detriment claim, with the consequence that compensation for injured feelings was potentially recoverable.

SYFRS appealed to the EAT, arguing that the tribunal did not have jurisdiction to make an award for injury to feelings.

The EAT did not agree with SYFRS and held instead that damages for injury to feelings should be potentially available to all the different detriment claims under Part V of the ERA. The EAT did however point out that whether it is awarded will, of course, depend on the facts.

What does this mean for employers?

Employers should be mindful that employees bringing any of the following detriment claims listed in Part V of the ERA may now put forward the argument that they should also be awarded injury to feelings if successful in their claim. These detriment claims include:

  • Leave for family and domestic reasons (pregnancy/childbirth, maternity leave, paternity leave, adoption leave, shared parental leave, parental leave, dependant’s leave)
  • Protected disclosures (whistleblowing)
  • Working time cases
  • Jury service
  • Health and safety cases
  • Employee representatives
  • Trustees of occupational pension schemes
  • Tax credits
  • Employees exercising right to time off work for study or training
  • Employee shareholder status
  • Sunday working for shop & betting workers (including additional hours)
  • Unpaid time off for study and training

As an employer, it’s important to make sure that your employees are not subjected to a detriment as a result of enforcing one of their statutory rights. If you receive one of these requests and you are unclear on how best to approach this you should obtain legal advice.

For more information on injury to feelings claims or any other detriment claims, please contact our Employment Law & HR team on 0161 475 7676.

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