This case concerned a worker in a care home whose activities required continuous service around the clock. This working pattern triggered the rules in the Working Time Regulations (WTR) that allow “compensatory rest” because the worker could not take the normal rest period of 11 hours in every 24-hour period.
The employer admitted it had not given the worker that compensatory rest and the worker felt he was entitled to financial compensation (even though he hadn’t actually suffered any pecuniary loss).
Compensation
The tribunal applied the regulations strictly. They say where a complaint is well-founded, the tribunal must make a declaration to that effect, and may order compensation.
Any compensation should be calculated according to the employer’s default and the worker’s loss. The tribunal made the declaration, but then declined to give any compensation. The tribunal noted that the employer had tried to resolve the situation, with the benefit of legal advice, but had simply misunderstood the rules, and that there was no malice behind its actions.
In the absence of financial loss, the Working Time Regulations (WTR) do not provide for injury to feelings awards in the way that discrimination legislation does.
The claimant appealed. However, the EAT supported the tribunal and dismissed the appeal. In addition it said that the remedy (including the declaration as well as any compensation) could only run from the time when the worker tries to exercise his right to daily rest, and not the whole time when he has not taken it.
In other words, the tribunal cannot consider any time period before the worker has raised a grievance.
Key points
- This demonstrates the importance of showing good faith.
- It is an unfortunate result for workers who are not aware of their rights under the Working Time Regulations and do not complain about any alleged breaches to their employer, thus compromising their right to a remedy in the tribunal.
- Although no compensation was awarded here, it is worth remembering that the tribunal does have the power to award compensation where financial loss attributable to the breach of the WTR by the employer can be shown.
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What you should do
- Do not use this case as an excuse to ignore the WTR – in this case, it was significant that the employer had tried to apply them but had simply misunderstood them.
Lisa Vaughan, associate, and Helen Stobbs, associate, Addleshaw Goddard
