Don't shoot the whistleblower
Moore Blatch | 26.04.2019
26.04.2019 Moore Blatch
The case of Grange v Abellio London Ltd will be of particular interest to employers as it confirms that non-compliance with (or a refusal to provide for) an employee’s entitlement to a rest break can result in an award of damages for personal injury.
During the employee’s period of employment, no provisions were made for rest breaks as required by Regulation 12 of the Working Time Regulations 1998 (WTR). The case was remitted to the tribunal by the Employment Appeal Tribunal (EAT) after the EAT confirmed the relevance of Regulation 12, which imposes a duty on employers to provide its employees with rest breaks. Failure to do this may be deemed as a ‘refusal’, which consequently may entitle the employee
The relevant periods of employment against which the refusal was to be established by the Tribunal, were described as (1) before July 2012, when the employee was too busy to take the break; (2) after July 2012, when no provision was made for his break; and (3) after July 2014, after the employee lodged a grievance and before he was on long-term
The employee had not suffered financial loss as a result of rest-break refusal, but the Tribunal said he suffered personal injury for 14 working days during period (3) – taking into account sick and annual leave – and the award was calculated at £750.
The employee appealed the Tribunal’s decision on the time limit, and the employer cross-appealed the “excessive” compensation, however the EAT’s decision was upheld.
This case is interesting because it was distinguished from the Court of Appeal’s decision in Santos Gomes v Higher Level Care Ltd. The EAT concluded that this case did not exclude damages for personal injury which would have limited the award to pecuniary loss only. This decision may mean tribunals will be open to a new kind of claimant. However, it must be noted that this particular employee had an underlying medical condition – which he needed to regulate to avoid using laxatives and prevent bleeding – from which the Tribunal could deduce the element of physical “distress” and “discomfort”. Moreover, the employer was aware of this condition.
The Tribunal found that because of this medical condition, the consequences of not taking these rest breaks were not limited to “minor inconvenience”, but rather could have an adverse impact on the employee’s health. The case is also a reminder that tribunals will address matters over which they have jurisdiction, whether conferred by the parties or the tribunal itself.