The Court of Appeal 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 other work that the employer could offer them.
Basic facts
Under the terms of his contract, Mr Visram was employed as an international security co-ordinator. As such, he was entitled to long-term disability benefits (LTDB). The provisions of the policy stated that should he be absent from and unable to work due to sickness or injury for a continuous period of 26 weeks or more, he was entitled to two thirds of his salary until “the earlier date of [his] return to work, death or retirement.” However, this was dependent on him remaining an employee.
While Mr Visram was on long-term sick leave, his employment was transferred to ICTS which arranged for the LTDB scheme to be insured with Canada Life rather than L&G. When his sick pay expired in April 2013, he made a claim for LTDB. After a dispute between the insurers as to who was liable, L&G agreed to pay the benefits for a year.
After being dismissed on grounds of medical capability in August 2014, 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 argued that “return to work” meant able to undertake any suitable full-time work.
Tribunal and EAT decisions
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.
Dismissing the employer’s appeal, the EAT (weekly LELR 623) 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.
Decision of Court of Appeal
Dismissing the appeal, the Court held that the provision triggering disability income came into effect once an employee had been absent from work for 26 weeks or more and was unable to perform their previous work.
As such, the reference to "work" in the policy clearly referred to the specific occupation of the person concerned. In this case, therefore, the reference to "your return to work" meant Mr Visram’s return to work as an international security co-ordinator for ICTS at Heathrow.
As the Court pointed out, “[i]f the drafters of the LTDB Plan had wished to say that the benefit would only be payable for so long as the individual was unable to perform any full time remunerative employment it would have been easy enough so to provide.”