Return to work

The Employment Appeal Tribunal (EAT) has held in ICTS (UK) Ltd v Visram that a contractual entitlement to long-term disability benefits which applied until the employee was able to “return to work” was a reference to the job they had been doing prior to going off sick and not to any suitable job that the employer could offer them.

Basic facts

Under the terms of his contract, Mr Visram was entitled to long-term disability benefits (LTDB) which entitled him to two thirds of his salary after 26 weeks absence from work due to illness until “the earlier date of [his] return to work, death or retirement”. However, this was dependent on him remaining an employee.

After being off work for 16 months due to work-related stress and depression, Mr Visram was dismissed on grounds of medical capability. At the time of his dismissal he had been employed as an International Security Co-ordinator.

Mr Visram brought tribunal proceedings for disability related discrimination and unfair dismissal, claiming that he was entitled to receive LTDB for so long as he was unable to return to the job of International Security Co-ordinator. ICTS, on the other hand, argued that “return to work” meant able to undertake any suitable full-time work.

After dismissing him but before his claim was heard by the tribunal ICTS instructed private investigators to undertake covert surveillance of Mr Visram and his family which caused them to become very anxious.  

Tribunal decision

The tribunal held that the dismissal constituted discrimination and was unfair.  In terms of compensation, it held that, the phrase “return to work” meant that Mr Visram was entitled to receive LTDB for as long as he was unable to return to the job immediately before he went absent on sick leave. In other words, as an International Security Co-ordinator.

As the tribunal heard evidence to the effect that he would never be able to return to that job, it held that he was entitled to receive the benefits until he was due to retire or his death, whichever came earlier. As for damages, the tribunal held that the sum of £14,000 which had previously been agreed between the parties for injury to feelings was appropriate. It did not award any additional sum by way of aggravated damages.

The company appealed against the decision on liability and Mr Visram appealed against the tribunal’s failure to make a separate award for aggravated damages or to increase the award of £14,000 that he had agreed with ICTS for injury to feelings as a result of the impact of the covert surveillance on him and his family.

EAT decision

Dismissing the employer’s appeal, the EAT held that the terms of the insurance policy setting out the entitlement to disability benefit was clear in that LTDB had to be paid for as long as the insured member under the scheme was a disabled member. As a disabled member is defined as “incapacitated from carrying out the duties of the job he [sic] was carrying out when he became incapacitated” the tribunal was correct to conclude that Mr Visram was entitled to continue to receive the benefits until death or retirement.

As for Mr Visram’s appeal against the decision not to award him aggravated damages, the EAT held that the tribunal had failed to make the necessary findings of fact in order to decide whether to make this award. The EAT therefore remitted the issue to a tribunal to reconsider, along with compensation for future loss of earnings.