The EAT held that all claims of detriment are akin to those of discrimination and victimisation and therefore it was a question of fact whether an award for injury to feelings should be made with regard to the circumstances of each particular case.
Here, the Fire Service introduced a system called Close Proximity Crewing (CPC) that was in breach of the Working Time Regulations 1998 in relation to the length of night at work and daily rest. When the firefighters refused to work this shift pattern, they were transferred to another station.
The firefighters claimed that they had been subjected to a detriment and in addition to financial loss as a result of the transfers, also claimed non-financial loss including injury to feelings, increased journey times; interference with care obligations; loss of free time, leisure time, and family time; the loss of existing congenial working arrangements; and disruption to their work.
The ET at first instance found that there had been a breach of the Working Time Regulations and that the firefighters had been subjected to a detriment when transferred to other stations which operated differing shift systems, contrary to sections 45A and 48 of the ERA. The firefighters were successful in their argument for injury to feelings however the fire service appealed this decision to the EAT. The Fire Service contended that the ET did not have jurisdiction to make awards for injury to feelings and other non-pecuniary loss in a Working Time case.
The EAT dismissed the appeal, holding that all claims of detriment under Part V were akin to claims of discrimination and victimisation. The question of whether an award for injury to feelings should be made was a question of fact in each particular case.
This case is very legalistic, in that it is an examination of relevant cases which look at detriment in other areas other than discrimination (i.e. Trade Union detriment and health and safety) to draw parallels as to how non pecuniary loss can be treated where an employee has been subjected to a detriment in relation to issues around the working time regulations.
However, this case is still particularly relevant to employers looking to introduce a new system of work, in an attempt to achieve cost savings and flexibility. Employers should ensure that any proposed shift pattern is compliant with the Working Time Regulations, especially as a breach may result in additional cost implications.