Gomes v Higher Level Care Ltd (Working Time Regulations) [2016] UKEAT 0017_16_1805

EAT
Gomes v Higher Level Care Ltd (Working Time Regulations)
[2016] UKEAT 0017_16_1805 · 2016-05-18
[1]Miss Santos Gomes appeals from the decision of Employment Judge Zuke (“the EJ”) sitting alone. In a judgment on remedy for the breach of Regulation 12 of the Working Time Regulations 1998 (“WTR”) sent to the parties on 10 August 2015 the EJ held that the Claimant was not entitled to recover compensation for injury to feelings under Regulation 30. In a decision on liability the EJ had found that the Respondent had failed to provide the Claimant with the 20 minute rest breaks required by WTR Regulation 12. The parties had agreed that the Claimant was entitled to an award of compensation under WTR Regulation 30 of £1,220 in respect of pecuniary loss. The issue for consideration in this appeal is whether the EJ erred in law in holding that WTR Regulation 30 whether on its domestic law interpretation or read in accordance with Council Directive 2003/88/EC (“the Directive”) which the WTR implements, does not confer an entitlement to compensation for injury to feelings. Outline Relevant Facts[2]The business carried out by the Respondent is the provision of accommodation and support for vulnerable young people. The Claimant was employed by the Respondent from 1 February 2013 until 28 May 2014. By her ET1 lodged on 3 June 2014 the Claimant brought a number of claims for compensation including for failure to allow her rest breaks she alleged “damage on my health and well-being”. By a judgment with Reasons sent to the parties on 24 June 2015, EJ Zuke upheld some of the claims including that under the WTR . The EJ found that the Respondent had failed to provide the Claimant with the 20 minute rest breaks required by WTR .[3]At the remedy hearing, the parties had agreed that the Claimant was entitled to an award of compensation of £1,220 under WTR Regulation 30. The EJ rejected the contention that the Claimant was also entitled to recover compensation for injury to feelings. Working Time Regulations 1998[4]“12.—(1) Where an adult worker’s daily working time is more than six hours, he is entitled to a rest break. … 30.—(1) A worker may present a complaint to an employment tribunal that his employer - (a) has refused to permit him to exercise any right he has under - (i) regulation … 12(1) … … (3) Where an employment tribunal finds a complaint under paragraph (1)(a) well-founded, the tribunal - (a) shall make a declaration to that effect, and (b) may make an award of compensation to be paid by the employer to the worker. (4) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to - (a) the employer’s default in refusing to permit the worker to exercise his right, and (b) any loss sustained by the worker which is attributable to the matters complained of.” Working Time Directive 2003/88/EC[5]The preamble to the Directive provides:
“Having regard to the Treaty establishing the European Community, and in particular Article 137(2) thereof, … Whereas: … (4) The improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations.”
Article 4 provides:
“Member States shall take the measures necessary to ensure that, where the working day is longer than six hours every worker is entitled to a rest break, the details of which, including duration and the terms on which it is granted, shall be laid down in collective agreements or agreements between the two sides of industry or, failing that, by national legislation.”
The Judgment of the Employment Tribunal[6]Ms Churchhouse addressed the same arguments to EJ Zuke as she relied upon before the Employment Appeal Tribunal (“EAT”). Ms Churchhouse contended that an award for injury to feelings could be made under WTR Regulation 30(4)(a). Before the EAT Ms Churchhouse explained that she did not rely on a domestic law interpretation of WTR Regulation 30(4)(b) to pursue a claim for injury to feelings as counsel stated that this was precluded by the judgment of the House of Lords in Dunnachie v Kingston-upon-Hull City Council [2004] IRLR 727 .[7]The EJ summarised the argument advanced by Ms Churchhouse that WTR Regulation 30(4)(a) enabled an award of compensation for injury to feelings to be made as follows:
“35. Ms Churchhouse submitted that regulation 30 is drafted in such a way that envisages a worker may not have suffered any financial loss, but that it could nevertheless be just and equitable to award compensation. She submitted that the only possible compensation an employee could be awarded under regulation 30(4)(a) in the absence of any actual pecuniary loss would be compensation for injury to feelings. Any other interpretation would make regulation 30(4)(a) redundant.”
EJ Zuke held:
“36. I do not accept that submission. In my view the focus of s.30(4)(a) is “the employer’s default in refusing to permit the worker to exercise his right”
. In other words, in assessing compensation the Tribunal is required to consider the reasons why the employer failed to comply with the relevant regulation, in this case regulation 12. That would include, for example, whether the employer had knowingly breached the relevant regulation; whether it had brazenly refused a request for a rest break or holiday or holiday pay, or whether its default was inadvertent, due to a mistake, or to a genuine but mistaken belief about the employee’s entitlement.”[8]The EJ rejected the argument advanced by Ms Churchhouse that the absence from Regulation 30 of an express provision excluding compensation for injury to feelings implies that such an award is permissible. He rejected the argument advanced by Ms Churchhouse that the express exclusion in the Part-Time Workers’ and Fixed-Term Employees’ Regulations of compensation for injury to feelings established that such compensation was otherwise recoverable. The EJ held:
“43. I am unable to accept that submission for the following reasons. The Part Time Workers’ Regulations and the Fixed Term Employees’ Regulations can both properly be described as anti-discrimination provisions. They prevent the less favourable treatment of a part-time worker or a fixed-term employee, compared respectively to a full-time worker, or a permanent employee. 44. The Equality Act 2010 is an anti-discrimination statute. It largely re-enacts earlier statutes outlawing discrimination in the workplace, including the Sex Discrimination Act 1975, and the Race Relations Act 1976. 45. S.124 of the Act provides that the amount of compensation which may be awarded by an Employment Tribunal corresponds to the amount which could be awarded by a County Court under s.119. S.119(4) says that:- “An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis.).” ”
[9]The EJ held that compensation to injury of feelings was restricted to discrimination cases. The EJ reasoned that the Equality Act 2010 outlaws discrimination on grounds of protected characteristics which relate to a person’s identity. Compensation for injury to feelings is available for such discrimination. Breach of the Fixed-Term Employees’ and Part-Time Workers’ Regulations is also discrimination but not discrimination by reason of a person’s identity. Hence the legislature had expressly excluded that remedy which was available in complaints of discrimination in other spheres, that by reason of a person’s status. The EJ held:
“48. In my view the reason why that possibility is expressly excluded in the Part Time Workers’ and Fixed Term Employees’ Regulations is that the status of being a part time worker, or a fixed term employee, is not a part of a person’s identity. It is a temporary employment status arising from the agreement entered into between the individual and the employer. Because both sets of Regulations are anti-discrimination provisions, Parliament wished to make clear that they are to be distinguished from the anti-discrimination provisions in the Equality Act to the extent that a breach of the Regulations cannot attract an award for injury to feelings. 49. The Working Time Regulations are designed to protect the health and safety of workers. They are not an anti-discrimination provision. They do not contain any reference to less favourable treatment in comparison with some other status or characteristic. 50. I conclude that the absence of an express prohibition of an award for injury to feelings does not imply that such an award is permissible. In my view, if Parliament had intended that such an award were permissible, it would have made express provision to that effect, as it did in the Equality Act 2010 and its predecessors.”
[10]In addition to arguments on the purely domestic law construction of WTR Regulation 30, Ms Churchhouse contended before the EJ that applying the principle in Marleasing SA v LA Commercial International de Alimentacion SA (KC-106/89) [1990] ECR 1-4135 the WTR should be read in light of the Directive so as to permit the Tribunal to make an award for injury to feelings. Before the EJ Ms Churchhouse relied upon paragraph (4) of the preamble that:
“The improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic consideration.”
[11]The EJ held that the Directive did not require the WTR to provide compensation for injury to feelings. He held:
“39. In my view there is nothing in the Directive that supports the proposition that its proper implementation requires member states to provide that a worker is entitled to compensation for any injury to their feelings that they may experience as a result of a failure to comply with the terms of the Directive.”
[12]In conclusion the EJ held that the Claimant was not entitled to recover compensation for injury to feelings under WTR Regulation 30. Domestic Law Construction of WTR Regulation 30(4)[13]The first three submissions made by Ms Churchhouse were in support of the contention that a purely domestic law construction of WTR Regulation 30(4) permitted the award of compensation for injury to feelings.[14]In her first submission Ms Churchhouse contended that the EJ erred in holding that an express statutory provision was required in order to enable a Claimant to be awarded compensation for injury to feelings under WTR Regulation 30.[15]Ms Churchhouse relied upon the judgment of the EAT, HH Judge Peter Clark and members in Cleveland Ambulance NHS Trust v Blane [1997] IRLR 332. Ms Churchhouse submitted that the wording and effect of WTR Regulation 30(4)(a) was similar in effect to the Trade Union and Labour Regulations (Consolidation) Act 1992 (“TULR(C)A”) section 149(2). In Cleveland the Claimant Mr Blane claimed that he had been subjected to a detriment on grounds related to his trade union membership or activities. The EJ upheld his claim and awarded him compensation under TULR(C)A section 149(2) including a sum for injury to feelings. The employers appealed. The issue before the EAT was whether the EJ had power to make such an award under section 149(2).[16]TULR(C)A section 149(2) provides that if an EJ finds a complaint under section 146 is well founded it shall make a declaration to that effect and may make an award of compensation in respect of the action complained of. Section 149(2) provides:
“(2) The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to the infringement complained of and to any loss sustained by the complainant which is attributable to the action which infringed the right.”
[17]The EAT in Cleveland referred to the judgment of the Court of Appeal in Ridgway v National Coal Board [1987] IRLR 80. In Ridgway May LJ expressed the view that Brassington v Cauldon Wholesale Ltd [1977] IRLR 479 in which the EAT held that compensation under Employment Protection Act 1975 for action short of dismissal for trade union membership can include a sum for non financial injury was wrongly decided. However Nicholls LJ and Bingham LJ expressed no view on the issue, no full argument on it having been addressed to the court. HH Judge Peter Clark in Cleveland followed the approach of the EAT in Brassington . HH Judge Peter Clark held that if the wording of section 149(2) of the TULR(C)A had followed the wording of what was now ERA section 123(1) he would have had no hesitation in rejecting the argument that there was a power under TULR(C)A section 149(2) to award compensation for injury to feelings. However the Judge held that the words in section 149(2) “… having regard to the infringement complained of and …” made a material difference conferring the power to award compensation over and above the pure pecuniary loss suffered by the applicant. Ms Churchhouse relied on paragraph 32 of Cleveland in which the Judge expressed the view that the express provisions in the SDA and the RRA , now in the Equality Act 2010 , were inserted “for the avoidance of doubt”. Whilst recognising that the wording of WTR Regulation 30(4) is different from that of TULR(C)A section 149(2), Ms Churchhouse contended that it is similar and the effect is the same.[18]Ms Churchhouse also relied upon the judgment of the EAT in Virgo Fidelis Senior School v Boyle [2004] IRLR 268 in which an ET had awarded compensation for being subjected to a detriment for making in a protected disclosure which included a sum for injury to feelings. However it was the amount of rather than the power to make an award which was subject to an appeal. Ms Churchhouse also referred to the judgment of the EAT in London Borough of Hackney v Adams [2003] IRLR 402 , Elias J (as he then was) and members in which an EJ had made an award for injury to feelings as compensation for being subjected to a detriment for participating in trade union activities. As in Virgo the issue on appeal was the amount of rather than the power to make an award in respect of compensation for injury to feelings.[19]Ms Churchhouse submitted that the judgments Cleveland , Virgo and Adams demonstrated that the ET has the power under materially indistinguishable provisions to make awards of compensation for injury to feelings. Further it was submitted that the fact that compensation for injury to feelings has been expressly excluded in Regulation 8(11) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 , Regulation 7(10) of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 and Regulation 18(15) of the Agency Workers Regulations 2010 illustrates that absent express exclusion there is power to award compensation for injury to feelings under provision analogous to WTR Regulation 30.[20]Accordingly it was submitted that the language of Regulation 30(4) permitted the award of compensation for injury to feelings without the need for express provision to do so.[21]The second submission in support of the contention that a domestic law construction of WTR Regulation 30(4) enables the making of an award to injury to feelings is that the EJ erred in concluding that WTR Regulation 30(4)(a) did not enable the award of compensation for injury to feelings.[22]Ms Churchhouse explained that, as before the EJ, she was not relying on WTR Regulation 30(4)(b). Ms Churchhouse took the position that the judgment of the House of Lords in Dunnachie v Kingston-upon-Hull City Council [2004] IRLR 727 precluded an argument that a domestic law construction of WTR Regulation 30(4)(a) permitted the award of compensation for injury to feelings. Although the provision under consideration in Dunnachie was for compensation for unfair dismissal under Employment Rights Act 1996 section 123(1) its wording was materially indistinguishable from WTR Regulation 30(4)(b). The House of Lords in the lead speech of Lord Steyn held at paragraph 28 that section 123(1) does not allow for the recovery of non-pecuniary loss.[23]Ms Churchhouse again relied upon the judgments of the EAT in Cleveland paragraphs 31 and 33 and Brassington paragraphs 31 and 33 in support of the proposition that these authorities showed that analogous provisions to WTR Regulation 30(4)(a) enabled an award of injury to feelings. Further, Ms Churchhouse referred to the judgment of Mr Recorder Underhill QC (as he then was) in HM Prison Service v Salmon [2001] IRLR 425 . At paragraph 29 the EAT pointed out that “injury to feelings can cover a very wide range”. Further, injury to health and injury to feelings are not always easily separable.[24]Ms Churchhouse summarised her submissions made in reliance on WTR Regulation 30(4)(a) as follows:
“… the regulations are drafted in such a way that specifically envisage that a Claimant may not have suffered financial loss under regulation 30(4)(a) but that it could nevertheless be just and equitable to award compensation for an employer’s default alone under regulation 30(4)(a). The only possible compensation an employee could be awarded under regulation 30(4)(a) would be injury to feelings. Any alternative interpretation would make regulation 30(4)(a) redundant.”
[25]The third submission made by Ms Churchhouse in support of the contention that the EJ erred in holding that WTR Regulation 30(4) did not permit the award of compensation for injury to feelings was that he wrongly concluded that compensation for injury to feelings was restricted to anti-discrimination statutes which protect a person’s identity. Ms Churchhouse submitted that cases such as Adams and Cleveland which were concerned with detriment because of trade union activities or for being a member of a union illustrated that compensation for injury to feelings was not confined to discrimination cases affecting a person’s identity. Elias J (as he then was) held in Adams at paragraph 12:
“The status of not being a trade union member is not likely, at least not in most cases, to be an essential part of an individual’s makeup, or to be a characteristic which is central to a person’s sense of self-respect and self-esteem.”
[26]Ms Churchhouse submitted that the summary by Mummery LJ in Vento v Chief Constable of West Yorkshire [2003] IRLR 102 of what injury to feelings is illustrates that it is not confined to damage caused by discrimination. Mummery LJ held at paragraph 50 that injury to feelings is “upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, depression and so on”. Ms Churchhouse submitted that such damage and compensation for it extends well beyond discrimination statutes.[27]Accordingly Ms Churchhouse submitted that as a matter of domestic law(i) an express provision is not required in WTR Regulation 30(4) for a Tribunal to award compensation for injury to feelings,(ii) the only possible interpretation of WTR Regulation 30(4)(a) is that it permits the Tribunal to award compensation for injury to feelings and(iii) such compensation is not limited to anti-discrimination statutes.[28]Ms Churchhouse characterised her fourth as her key submission. Ms Churchhouse challenged the conclusion of the EJ that there was nothing in the Directive to support the proposition that its proper implementation required Member States to provide that a worker who had suffered a breach of WTR was entitled to compensation for injury to feelings. Ms Churchhouse contended that not to do so was a failure to provide an effective remedy as required under European law.[29]Ms Churchhouse developed her argument on the effect of the Directive and EU law in four stages.[30]The first part of the first stage of reliance on EU law is uncontroversial. The WTR are the domestic law implementation of the Directive . Ms Churchhouse stated that the Directive does not specify particular sanctions for breach of the rights to be secured. In accordance with Article 189 EU Member States are therefore free to determine the implementation of the Directive in national law. However domestic law must provide an effective remedy (case C-14/83 Von Colson und Kamann v Land Nordrhein Westfalen : 14/83 [1984] ECR 1891 paragraph 15).[31]However, more controversially, Ms Churchhouse submitted that the principle of effectiveness requires national law to provide effective penalties (emphasis added) for breach of EU law rights. In this regard Ms Churchhouse relied upon case C-68/88 EC Commission v Greece [1989] ECR 2965 paragraphs 23 and 24. Ms Churchhouse also relied upon a quotation from paragraph 7 of Marshall v Southampton and South West Hampshire Area Health Authority (No 2) [1993] ICR 893 referring to the need of Member States to impose sanctions in respect of prohibitions laid down in Directives. However, as Ms Churchhouse acknowledged, the passage was taken from the Opinion of the Advocate-General and not from the judgment of the Court. That expression was not adopted in the judgment of the Court.[32]Ms Churchhouse further relied upon the judgment of the CJEU in Fuss v Stadt Halle [2010] ECR 19849 at paragraph 92 in support of a proposition that penalties adopted in national law for breach of EU rights must(i) guarantee real and effective judicial protection of those rights,(ii) have a real deterrent effect on the employer and(iii) if compensation is the chosen remedy, that compensation must be adequate to the damage sustained.[33]It was submitted that Von Colson establishes that for compensation to be adequate it must be more than nominal. Further, it does not have to be equal to the damage sustained. Ms Churchhouse submitted that of most relevance to the current appeal, on the basis of paragraph 18 of the opinion of the Advocate General in Marshall there must be adequate compensation having regard to the most important components of damage traditionally taken into account in rules governing liability. The Court (not in the judgment but in the Opinion of the Advocate-General) identified four such elements: loss of physical assets, loss of income, moral damage and damage on account of effluxion of time. Injury to feelings was referred to as moral damage.[34]Ms Churchhouse submitted that in concluding that compensation for injury to feelings was not available under Regulation 30 WTR the EJ failed to provide adequate compensation in relation to the damage sustained and therefore inadequate remedy for breach of the Directive . It was submitted that the CJEU had defined injury to health broadly to include injury to feelings and the aim of the Directive is to protect health and safety. Reliance was placed on the Commission’s proposal for the Directive and paragraph 15 of the judgment of the CJEU in UK v Council of the EU Case C-84/94 which referred to a preamble to the constitution of the World Health Organisation which stated:
“health is a state of complete psychic, mental and social well being that does not consist only in the absence of illness and infirmity”
. Ms Churchhouse submitted that Mummery LJ in Vento at paragraph 50 and Mr Recorder Underhill QC (as he then was) in at paragraph 29 Salmon pointed out that injury to feelings may not be easily distinguishable from psychiatric injury and depression. It was said that the Respondent’s submission that injury to feelings awards cannot compensate for psychiatric harm is incorrect.[35]Ms Churchhouse submitted that in accordance with the obligations of domestic courts to interpret domestic legislation in accordance with the wording and purpose of a Directive as explained in Von Colson and Case C-106/89 Marleasing SA v LA Commercial International de Alimentacion SA ECR [1990] 1-04135, the EJ had an obligation to construe WTR Regulation 30(4) so as to given an entitlement to compensation for injury to feelings.[36]Mr Pascall, counsel for the Respondent, emphasised that the issue in this appeal is whether compensation for injury to feelings is available under the WTR . It is not concerned with whether compensation for non-pecuniary loss for personal injury would be available. Counsel pointed out that £1,222 was paid by the Respondent to the Claimant as agreed compensation for pecuniary loss.[37]Whilst Mr Pascall recognised that Mr Recorder Underhill QC (as he then was) in Salmon observed that there was some overlap between injury to feelings and psychiatric damage or depression, he pointed out that the court also held that injury to feelings and psychiatric injury are distinct.[38]The Claimant relied on WTR Regulation 30(4)(a) not 30(4)(b) to advance her first two domestic law arguments. Regulation 30(4)(a) was concerned with the actions of the Respondent nor the feelings of the Claimant. It did not confer a right to claim for the injury to feelings felt by a claimant.[39]Mr Pascall submitted that Ms Churchhouse was not able to point to any domestic non-discrimination provision under which injury to feelings can be awarded. The only cases in which compensation for injury to feelings has been awarded are discrimination claims and those where the Claimant has been adversely treated because of trade union membership or activities: their personal status. The reasons why a claim for injury to feelings is expressly excluded from claims by part-time workers, agency workers and those engaged under fixed term contracts is that such claimants assert they are adversely treated compared with comparators. The claims are based on discrimination. As discrimination claims can give rise to compensation for injury to feelings such a claim has to be expressly excluded if it is not to be included. Mr Pascall contended that the express exclusion of compensation for injury to feelings from such decisions is not indicative of the existence of such a general right in statutory employment law claims. It is merely indicative of such a right in other discrimination claims.[40]Mr Pascall contended that on a purely domestic law construction, WTR Regulation 30(4) does not confer power to award compensation for injury to feelings.[41]Mr Pascall accepted as uncontroversial the proposition that courts and tribunals are required to interpret domestic law as far as is possible to do so compatibly with the Directive . Further he agreed that proper transposition of the Directive requires a provision for adequate remedy for breach of its requirements. However counsel submitted that there is no decision of the CJEU in which it has been held that compensation for breach of a requirement of a transposed Directive will be inadequate if it does not include the possibility of a claim for injury to feelings.[42]Fuss was concerned with domestic law remedies for breach of the domestic law transposition of the Directive . Mr Pascall drew attention to paragraph 98 in which the CJEU held that:
“In the absence of relevant EU law provisions, it is for the national law of the Member State concerned to determine, whilst ensuring observance of the principles of equivalence and effectiveness, first, whether reparation for the loss or damage such as Mr Fuss in the main proceedings, as a result of the breach of a rule of EU law, should take the form of additional time off in lieu or financial compensation for the worker and, second, the rules concerning the method of calculation of that reparation.”
[43]Whilst, without so conceding, Mr Pascall could understand an argument that compensation for breach of WTR , if it was to properly implement the Directive , should include damages for personal injury, that was not argued in this case. What was being contended for was compensation for injury to feelings. There was no basis either in domestic or European law for such compensation for breach of the WTR . Discussion and Conclusion[44]As Ms Churchhouse advanced the first two bases of her argument that WTR Regulation 30(4) enabled an ET to make an award for injury to feelings relying on Regulation 30(4)(a) and expressly not on Regulation 30(4)(b). Ms Churchhouse adopted this approach because she explained that the House of Lords in Dunnachie had held that the materially indistinguishable provision for compensation for unfair dismissal in ERA section 123(1) precluded such a submission on the basis of Regulation 30(4). Lord Steyn held at paragraph 22 that he:
“… would hold that the plain meaning of the word loss in Section 123(1) excludes non-economic loss.”
[45]Where an EJ finds a complaint under WTR Regulation 12(1) well founded and exercises its discretion to make an award of compensation the amount of compensation under Regulation 30(3)(b) shall be such as the EJ considers just and equitable in all the circumstances having regard to:
“(a) the employer’s default in refusing to permit the worker to exercise his right and (b) any loss sustained by the worker which is attributable to the matters complained of.”
[46]Ms Churchhouse contended first that no express provision was needed for claimants to recover compensation for injury to feelings for breach of the WTR and secondly that the EJ erred by failing to hold that a power to make such an award was implied in Regulation 30(4)(a). The provision applicable to compensation for statutory discrimination cases is that which corresponds to the amount which could be awarded by the county court under what is now the Equality Act 2010 section 119. Section 119(4) provides that an award may include compensation for injured feelings (whether or not it includes compensation on any other basis). The legislature has expressly provided for the award of compensation for injury to feelings in such cases.[47]It is well established that awards for injury to feelings are compensatory not punitive. Smith J (as she then was) held in Armitage and others v Johnson [1997] IRLR 162 at paragraph 27:
“We summarise the principles which we drew from these authorities: (1) Awards for injury to feelings are compensatory. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor’s conduct should not be allowed to inflate the award.”
Although this observation was made in respect of a claim for racial discrimination and harassment, there is no reason to restrict it to such cases. Where it is awarded in discrimination cases, compensation for injury to feelings is based on the effect on the claimant not on the default of the perpetrator.[48]The judgment of Mr Recorder Underhill QC (as he then was) in Salmon relied upon by Ms Churchhouse treats the bad conduct of the Respondent as a feature to be taken into account in assessing injury to the feelings because and to the extent that it aggravated the injury to the Claimant’s feelings. The EAT held at paragraph 24 that the EJ found that the conduct:
“… added to the injury to Mrs Salmon’s feelings. In our view there was a sufficient basis for the tribunal to find aggravating conduct here; and the tribunal plainly addressed the correct question, namely the extent to which that conduct aggravated the injury to Mrs Salmon’s feelings.”
[49]Further, the judgment of the EAT in Salmon illustrates that in practice the two types of injury, injury to health and injury to feelings, are not easily separable. However they are different kinds of loss. In any event both are based on the injury suffered by the claimant. Such injury is caused by the actions of the respondent. No award would be made under those heads if no injury was suffered by the claimant. Salmon provides no support for the submission advanced by Ms Churchhouse that an ET can award compensation for injury to feelings under WTR Regulation 30(4) taking into account the factors in Regulation 30(4)(a). The conduct of the employer, excluding those in Regulation 30(4)(b) which refer to loss suffered by the Claimant.[50]Of a detriment suffered because of participation in the activities of a trade union, Elias J (as he then was) in London Borough of Hackney v Adams [2003] IRLR 402 in the EAT held at paragraph 12:
“But it ought not readily to be assumed that injury to feelings inevitably flows from each and every unlawful act of discrimination. In each case it is a question of considering the facts carefully to determine whether the loss has been sustained. Some previous discriminated against on trade union grounds may feel deeply hurt by that affront, particularly where trade union membership is an important feature of their lives; other more robust characters may consider it a matter of little consequence and suffer little, if any, distress. Since the aim is to compensate and not to punish, the compensation to be awarded ought not to be the same in each case.”
[51]Brassington , Cleveland , and Adams , cases concerned with detriment on trade union grounds and Virgo , for whistle-blowing, do not support a construction of WTR Regulation 30(4)(a) as enabling an ET to make an award for injury to feelings. The provision under which awards were made in those cases included consideration of loss to the employee. In Virgo , HH Judge Ansell was not concerned with whether injury to feelings was available in “whistle-blowing” cases as that decision was not appealed. The appeal concerned the amount of such an award. However in this appeal consideration of WTR Regulation 30(4)(b), which refers to loss sustained by the worker, is expressly not relied upon to support the first two submission in this appeal. These are based on WTR Regulation 30(4)(a) under which an ET is to have regard to the default of the employer in deciding on the amount of compensation which it would be just and equitable to award.[52]In my judgment, the express exclusion of compensation for injury to feelings from awards under the Part-Time Workers’ Regulations , the Fixed-Term Employees’ Regulations and the Agency Workers’ Regulations does not indicate that compensation for injury to feelings is generally available in statutory employment claims such as under the WTR . Claims under these three sets of Regulations are of types of discrimination. As explained in Adams , compensation for injury to feelings may be available in different types of discrimination cases.[53]In my judgment the position adopted by counsel for the Claimant that on its domestic law construction “loss” within WTR Regulation 30(4)(b) cannot include injury to feelings does not justify its inclusion in Regulation 30(4)(a). Regulation 30(4)(a) requires the ET to have regard to the employer’s default, in this case not allowing rest breaks, in deciding the amount of compensation which it would be just and equitable to award. As she had before the EJ, Ms Churchhouse posed the question what was the purpose of WTR Regulation 30(4)(a) if it could not allow for an award for injury to feelings to be made. Each case will turn on its own facts but the EJ gave apt examples of the “employer’s default” which could be taken into account under WTR Regulation 30(4)(a). Contrary to my conclusion, if it is to be considered as an element of compensation, injury to feelings would fall to be taken into account as a loss to the worker. As Armitage and Adams make clear, injury to feelings depends on the feelings of the claimant not the condemnation of the action of the employer which causes those feelings. There is no justification for adopting an unsupported strained construction of WTR Regulation 30(4)(a) so as to fit the loss, injury to feelings, sustained by the Claimant into a provision, Regulation 30(4)(a), requiring consideration of the employer’s default.[54]As Mr Pascall rightly observed of the third submission advanced by Ms Churchhouse, that the EJ erred in concluding that compensation for injury to feelings was restricted to anti-discrimination statutes which protect a person’s identity, Ms Churchhouse was unable to point to any authority in which such compensation had been awarded in a claim not involving discrimination.[55]The Equality Act 2010 section 124 provides for the discretionary award of compensation to be paid by an employer in breach of the provisions of that Act. Amongst others the prohibition on discrimination and other prohibited actions by an employer. By reason of such compensation corresponding to that which could be awarded by a county court, and with express reference to it, compensation for injury to feelings may be awarded.[56]Elias J (as he then was) in Adams explained the basis for the award of compensation for injury to feelings in trade union cases. Elias J held in paragraph 12 that action taken against an individual because of their trade union membership or activities is treated as a form of discrimination. Compensation for injury to feelings in such cases is based on the particular injury suffered.[57]In Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 , the court considered the level of compensation for injury to feelings. The question of entitlement to such an award did not arise as it was a race discrimination case. So too the judgment of HH Judge Ansell in Virgo was concerned with the level of the award for injury to feelings in a whistle-blowing case not with the power to make such an award. Vento and Virgo do not support the submission that the EJ erred in holding that compensation for injury to feelings is restricted to discrimination claims.[58]The House of Lords in Dunnachie held that it was not open to an EJ to include an award for injury to feelings in compensation for unfair dismissal. The House of Lords in Johnson v Unisys [2001] IRLR 279 had held that such damages were not available in common law claims of wrongful dismissal.[59]Claims for breach of the WTR for failure to allow statutory mandated rest breaks are akin to claims in breach of the contract of employment. If such rest breaks are refused on discriminatory grounds a discrimination claim including, where relevant, for trade union activities or membership, could be brought. Such claims can attract compensation for injury to feelings for reasons explained by Elias J (as he then was) in Adams . However in my judgment the EJ did not err in holding that compensation for injury to feelings is confined to discrimination cases.[60]None of the three bases on which Ms Churchhouse advanced the argument that the EJ erred in holding that there could be no claim in domestic law for injury to feelings under WTR Regulation 30(4) succeed. The European Law Argument[61]Ms Churchhouse and Mr Pascall were agreed on well established principles which apply to the effect of European law on domestic law. The effect of the Directive and decisions of the CJEU are to be considered. The Claimant cannot rely on the Directive for direct effect as the Respondent is not an organ of the State. It has been established since the judgment of the CJEU in Sabine von Colson v Land Nordrhein Westfalen [1984] ECR 1891 that although Article 189 of the EU Treaty leaves Member States free to choose the ways and means of ensuring that a Directive is implemented, that freedom does not affect the obligation imposed on Member States to adopt, within the framework of their legal systems, all measures necessary to ensure that a Directive is fully effective in accordance with the objective which it pursues. The decision of the CJEU in Marleasing SA v LA Comercial Internacional de Alimentacion SA [1990] ECR 1-04135 that in applying national law implementing a Directive the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the Directive in order to achieve the result pursued by it. Marshall (No 2) established that where, as in the Sex Discrimination Act 1975 in respect of remedy for discrimination on grounds of sex, the payment of compensation was the measure adopted in national legislation to achieve the objective of the applicable Directive, in order to comply with the requirement in Article 6 of the relevant Directive , that compensation had to be adequate in that it should enable the loss and damage actually sustained to be made good in full.[62]Paragraph (4) of the preamble states that an objective of the Directive is the improvement of workers’ safety, hygiene and health at work. Article 4 provides that Member States shall take the measures necessary to ensure that every worker is entitled to rest breaks specified in the Article. Article 4 provides that the details of the rest break, including duration and the terms on which it is granted, are to be laid down in collective agreements or agreements between the two sides of industry or, failing that, by national legislation.[63]The UK government chose to implement the Directive by national legislation, the WTR . WTR Regulation 12 refers to details of rest breaks as being, “… in accordance with any provisions for the purposes of this regulation which are contained in a collective agreement or workforce agreement.” The means of redress for breach is provided by way of complaint to an ET. If a breach is established, Regulation 30(3) provides for a mandatory declaration and a power to award compensation. There is no statutory limit on the amount of compensation which may be awarded. The amount is to be such as the ET considers to be just and equitable in all the circumstances having regard to two specified factors:- “(a) the employer’s default in refusing to permit the worker to exercise his right, and (b) any loss sustained by the worker which is attributable to the matters complained of.”[64]Ms Churchhouse relied upon the judgment of the CJEU in UK v Council of the European Union [1996] ECR 1-5755 and the Proposal for it to contend that the concept of health informing the Directive was a broad one extending beyond psychiatric injury to include psychological injury. Ms Churchhouse contended that this would include injury to feelings. Ms Churchhouse referred to paragraph 15 of the judgment. However that paragraph refers to the interpretation of Article 188a of the Treaty not to the wording of the Directive . The court was considering the challenge to the introduction of the Directive using powers under Article 118a not the interpretation of the Directive . Further, even if the tangential reference to the preamble to the constitution of the World Health Organisation to “mental and social well being” included psychological injury the reference was made in order to examine whether the concepts of “working environment”, “safety” and “health” in Article 188a included measures to regulate working time. It did not purport to affect or determine the remedies which the Directive mandate.[65]Ms Churchhouse contended that according to the jurisprudence of the CJEU the principle of effectiveness requires national law implementing EU law to provide for effective penalties for breach. In support of this proposition, Ms Churchhouse relied upon the judgment of the CJEU in EC Commission v Greece [1989] ECR 2965 . At paragraphs 23 and 24 the court stated that whilst community legalisation does not specifically provide any penalty for an infringement, Article 5 of the Treaty requires Member States to take all measures necessary to guarantee the application and effectiveness of Community law. The court held:
“For that purpose, whilst the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalised under conditions, both procedural and substantive which… in any event make the penalty effective, proportionate and dissuasive.”
The passage in Marshall (No 2) relied upon by Ms Churchhouse as requiring penalties for breach of Directives was in paragraph 7 of the Opinion of the Advocate General and was not adopted by the Court.[66]In EC Commission v Greece the CJEU was concerned with an application by the Commission under Article 169 of the EEC Treaty for a declaration that by failing to establish and pay to the Community money fraudulently withheld from its budget the Hellenic Republic had failed to fulfil its obligation under Community law. Under Regulation 2727/75 EC Regulations have direct effect. Under the Regulation Greece was obliged to pay a levy. The defence advanced by Greece was that an administrative inquiry had been ordered (paragraph 4). The court held that by failing to establish the entitlement of the community to its funds Greece failed to fulfil its obligations under Regulations 2727/75 and 2891/77.[67]In EC Commission v Greece there had been a fraudulent failure to pay money to the Commission. The court held at paragraph 26 that:
“… it does not appear from the file on the case that the Greek authorities have instituted criminal or disciplinary proceedings against persons who took part in the commission and concealment of the fraud …”
The court held that by failing to institute such proceedings Greece had failed to fulfil its obligations under Article 5 of the EEC Treaty. It was in this context that the CJEU made the observations in paragraphs 23 and 24. In cases of fraudulent acts which would be penalised under domestic law, the CJEU was concerned with penalty not compensation as a means of enforcement. The judgment of the CJEU in EC Commission v Greece does not support a conclusion that the entitlement to time off should be secured by a penalty rather than compensation. Compensation must be adequate in relation to the damage sustained but a penalty is not required for proper implementation of the Directive .[68]Ms Churchhouse referred to paragraph 92 of the judgment of the CJEU in Fuss v Stadt Halle Case c-429/09 on a preliminary ruling regarding conditions on which the right to reparation for loss or damage for breach of requirements of the Directive may be obtained. Whilst paragraph 92 relied upon by Ms Churchhouse states that reparation “must be commensurable with the loss and damage sustained so as to ensure the effective protection of their rights”, the court continued:
“93. As is apparent from paragraph 62 of the present judgment, in the absence of relevant EU law provisions, it is for the domestic legal system of each Member State, subject to observance of the principles of equivalence and effectiveness, to set the criteria for determining the extent of reparation (Brasserie du Pêcheur & Factortame, paragraph 83).”
Member States are required to provide effective protection of community rights equivalent to that given under domestic law to similar domestic claims.[69]Claims for denial of the right to rest breaks are analogous to claim for breach of contract. The contract of employment arguably may be regarded as subject to a statutory variation giving such an entitlement. As has been established in Addis v Gramophone Co Ltd [1909] AC 488 , 491 and Johnson v Unisys there is no entitlement in domestic law to damages or compensation for injury to feelings either for a breach of a contract of employment or for unfair dismissal. Claims for failure to allow rest breaks are not without more to be regarded as cases of discrimination which in other spheres could attract compensation for injury to feelings.[70]Whilst, as illustrated by Salmon , medically established conditions such as stress and depression may sometimes be related to injury to feelings, as recognised by Mr Recorder Underhill QC, they are subject to separate heads of compensation. Mr Pascall rightly recognised without formally conceding that breach of the obligation to grant rest breaks may lead to non-financial loss. If an employer repeatedly refused rest breaks, an employee may become exhausted and ill. In my judgement it may be argued that the loss to which an EJ may have regard under WTR 30(4)(b) in awarding compensation could include compensation for injury to health caused by the employer’s default. Further, in certain circumstances the employee may be able to pursue a remedy in tort for such injury in the courts. However, in this case Ms Churchhouse has made clear that the Claimant’s claim was not for injury to health but for injury to feelings. The Directive does not specify the courts in which the entitlement is to be enforced nor the remedies which must be available. The obligation imposed by the Directive is for Member States to implement its provisions in accordance with the objective to be achieved. The means of doing so are left to Member States. Those means must be such as to provide effective protection. However, neither the Directive nor established principles of European law require the courts to construe WTR Regulation 30(4) so as to provide compensation for injury to feelings.[71]The EJ did not err either in a domestic or a European law construction of WTR Regulation 30(4) in holding that the Claimant was not entitled to recover compensation for injury to feelings. No Reference to the CJEU[72]Whilst there was some mention of a possibility of a reference to the CJEU at the hearing, which was referred to in Ms Churchhouse’s skeleton argument, no such application was made or oral submissions developed. In respect of the specific claim for compensation for injury to feelings under domestic legislation implementing the Directive submissions would have been required on the question to be referred, why a reference would have been necessary or appropriate and whether the answer would have been acte clair . Disposal[73]This appeal is dismissed.