Scope of ‘injury to feelings’ expanded by employment tribunal

7th May 2019

Chloe BradleyIn employment law, awards for ‘injury to feelings’ have historically been permitted only in claims linked to discrimination, whistleblowing, and trade union membership.

Nevertheless, due to a recent Employment Appeals Tribunal (EAT) decision, the situation may now have changed. Chloe Bradley, Legal Adviser at DAS Law, explains…

What was the case about?

The case in question, South Yorkshire Fire and Rescue Service and Mr D Mansell and Others, involved a group of firefighters who brought a claim for a working time detriment following the introduction of a new shift system. The firefighters refused to volunteer for the new shift patterns on the basis that they contravened the Working Time Regulations 1998.

They argued that the detriment they had suffered as a result of being moved to other stations included increased journey times; interfered with care obligations; caused loss of leisure and family time; resulted in the loss of existing congenial working arrangements; and disruption to their work patterns and working relationships.

What was the decision?

They succeeded in their claim for a breach of section 45A of Employment Rights Act 1996. In a surprise move, the tribunal held that compensation for non-pecuniary loss, including injury to feelings, was potentially available. In reaching its decision, the tribunal considered:

  • Section 49 of the Employment Rights Act permitted awards for injury to feelings;
  • The basis that a Section 45A claim amounted to a claim of discrimination and of victimisation;
  • The EU law principle of equivalence.

South Yorkshire Fire and Rescue Service appealed on the basis that the tribunal had no jurisdiction to make that award and that appeal was unsuccessful, with the EAT reaffirming that injury to feelings awards can be made for claims of working time detriment.

What can injury to feelings awards potentially now be made for?

The EAT ruled that damages for injury to feelings can be claimed in any of the possible types of action set out in Part V of the Employment Rights Act 1996 – a far broader list than the previously established position, including:

  • Jury service;
  • Health and safety cases;
  • Sunday working for shop workers;
  • Working time;
  • Trustees of occupational pension schemes;
  • Employee representatives;
  • Studying or training;
  • Protected disclosures;
  • Leave for family and domestic reasons;
  • Tax credits;
  • Flexible working; or
  • Employee shareholder status.
What’s the take-out for employers? Be ‘nice’?

Not exactly. The consequence is that employers should now be mindful that compensation for ‘injury to feelings’ may now be claimed in far more situations than was previously the case, although it remains the case of course that it’s not a cause of action in its own right.

So while it doesn’t exactly give rise to an increased imperative to be more observant of the feelings of employees, if that element is deemed relevant this could now mean that a successful related claim is a little bit more costly, which is worth bearing in mind.

Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created.

10 employment law changes to look out for

Hayley Marles highlights ten changes that HR professionals & business owners need to be aware of, including Brexit immigration rule changes.

April 2019 Learn more
How to deal with mental health discrimination at work

There are legal protections in place to support those with a mental health condition. Here’s what you need to know if you are being treated unfairly at work because of your mental health.

October 2018 Learn more
How to navigate employment rights in the gig economy

If you are unsure about your employment status, the rights and benefits that come with it, you need advice from professionals who understand the law.

July 2018 Learn more

Read more from the DAS Law blog

Employment disputes Can your boss force you to work the August Bank Holiday?

Can you refuse to work on a bank holiday? DAS Law’s Hannah Parsons outlines your rights.

August 2019
Employment disputes , Goods and services disputes , Professional services disputes Is the customer always right when it comes to alcohol and pregnancy?

A recent Reddit post sparked debate on personal accountability and the rights of serving staff when it comes to alcohol. Larna Mason explains what the law says.

August 2019
Employment disputes What employers should do during a heatwave

What are an employer's obligations to employees when the weather gets too hot? Hannah Parsons gives the lowdown.

July 2019
Employment disputes , Protecting your business How working time regulations can limit your employees’ hours

A study by French researchers has highlighted some of the health risks faced by those working long hours. Sarah Garner, Solicitor at DAS Law, looks at the specific rules and regulations regarding the working day.

July 2019
Employment disputes When should a condition be classified as a disability?

DAS Law Senior Associate and Legal Executive Tessa Faverty considers this crucial question, drawing on her professional expertise, and personal experience.

June 2019
Employment disputes Can an employer ban working from home?

A recent ban on working from home at BNY Mellon raised questions about what an employee’s rights are when it comes to working from home.

June 2019
Employment disputes Scope of ‘injury to feelings’ expanded by employment tribunal

In employment law, awards for ‘injury to feelings’ have historically been permitted only in claims linked to discrimination, whistleblowing, and trade union membership, but the situation may now have changed.

May 2019
Employment disputes , Protecting your business When can company directors be personally liable?

The recent High Court case of Antzuzis & Others v DJ Houghton Catching Services & Others is a stark reminder of how company directors can be personally liable for their acts.

May 2019
Employment disputes 10 employment law changes to look out for

Hayley Marles highlights ten changes that HR professionals & business owners need to be aware of, including Brexit immigration rule changes.

April 2019
Employment disputes , Protecting your business 6 tips for giving your business a “spring clean”

Are your staff handbooks up-to-date? Are your staff taking all of their holiday allowance? Give your business a spring clean with these six tips for a clean and tidy SME.

April 2019
Employment disputes Don’t get in trouble with the law on April Fool’s Day

When does the line between hilarious and harsh get crossed and can a prank turn into legal proceedings?

March 2019
Employment disputes What to do if your employer stops you working from home

Lindsey Hunt, Legal Adviser at DAS Law, provides some insight regarding employees and their right to work from home.

March 2019
Employment disputes The Big Gig Rejig – what employers should know about the gig economy

DAS Law Solicitor John Griffiths explains what the ‘gig economy’ means and how businesses can help themselves today when it comes to clearly defining the status of their people.

March 2019