Long term disability benefits will not cease to be provided by an employer purely because the employee is capable of taking up some kind of paid employment

An Employment Appeal Tribunal (‘EAT’), in the case of ICTS Limited v Visram has ruled that where an employee is entitled to receive disability benefits until his “return to work”, the benefits shall continue until he could return to the same job with the employer.

Mr Visram worked at Heathrow Airport with American Airlines. Although this was unrelated to the principle in this case, his claim was brought against ICTS Limited because his employment had transferred under TUPE from American Airlines during his sickness absence.

Mr Visram went on sick leave with work-related stress and depression. He attempted a phased return to work on a part-time basis for a couple of months but this was unsuccessful and he reverted to sickness absence. Once he had been absent on sick leave for 26 weeks, he expected to receive benefits pursuant to a Long Term Disability Benefits (‘LTDB’) plan included in his contract of employment. When Mr Visram did not receive his disability benefits, he presented a grievance but was later dismissed on the grounds of capability.

Mr Visram brought a successful claim for unfair dismissal and disability discrimination. The Employment Tribunal (‘ET’) held that under the LTDB plan, Mr Visram was entitled to receive disability benefits until the return to his original job or until death or retirement. Accordingly, compensation was awarded on the basis that the LTDB plan would have continued until death or retirement.

The EAT dismissed the appeal by ICTS Limited that the entitlement to disability benefits ceased when he was able to return to any full-time suitable work.

The EAT held that it was necessary to consider the wording of the policy. The EAT concluded that the phrase “return to work”, means ‘going back’. The EAT had to decide whether this meant going back merely to the employer or the actual duties of the job he was carrying out. In this instance, the EAT concluded that the policy gave Mr Visram the right to receive the benefit payments until he could return to his old job. As this was not ever going to happen, due to the duties of his work making him unwell, he was compensated until death or retirement.

Although this case is fact specific, the principles which derive from it demonstrate that many policies, which are commonly held with each of our employees, are construed slightly differently. This case highlights that the wording “return to work” is strictly applied to mean going back to the very same job.

Moreover, given the amounts involved in compensation, it is unsurprising that employers will attempt to construct arguments which are favourable to them.

The key for employers is to check the wording of these policies carefully before proceeding to dismissal.