Do the words “return to work” in a long-term disability scheme mean return to any work or the work that the employee was undertaking prior to going on long term sickness?
In this instance, the Court of Appeal upheld the ET and EAT’s view that return to work meant return to the Claimant’s previous work.
Mr Visram worked as an international security co-ordinator until his dismissal on 14th August 2014. His terms and conditions of employment included entitlement to long-term disability benefit (LTDB) for employees who were “absent from, and unable to, work due to sickness or injury for a continuous period of twenty-six weeks or more”. The payment would commence 26 weeks after the start of the absence and continue until the earlier of the employee’s “return to work, death or retirement.”
Save for a brief period of time, Mr Visram was off work from October 2012. On 1st December 2012 his employment transferred under TUPE 2006 to ICTS. At that stage Mr Visram had not been absent from work for a continuous period of 26 weeks or more. ICTS insured its liablities under the LTDB scheme with an insurer. However, that insurer refused to indemnify on the basis that the illness occurred before inception of the policy. The transferor’s insurer refused to indemnify on the basis that employment had transferred before completion of the deferred period.
Mr Visram was dismissed on the grounds of capability. He succeeded in the ET and EAT that his dismissal was an act of disability discrimination and unfair dismissal. [see UKEAT/0344/15/LA] and argued that irrespective of the existence of insurance, that there was a primary liability on ICTS to pay LTDB. The ET thereafter had to decide the basis and amount of compensation to be awarded for the loss of LTDB. In doing so, it had to determine whether the LTDB entitlement was dependent upon a return to work with the employer to the same role as was being performed immediately before absence on sick leave or return to any suitable alternative work. The Court of Appeal upheld the decision of the ET and EAT that the words meant return to Mr Visram’s previous work as an International Security Co-Ordinator as opposed to any full time remunerative employment. The case is to be remitted to the ET to determine the amount of compensation to be awarded.
View the full Judgment here.
Oliver Isaacs represented Mr Visram in the ET, EAT and the Court of Appeal.
