Case update: Mr A Visram v ICTS (UK) Limited

Case update: Mr A Visram v ICTS (UK) Limited

Under his contract of employment with AA, the Claimant was entitled to long-term disability benefits (LTDB), which were funded by an insurance policy. On 1 December 2012, the Claimant transferred employment in accordance with the provisions of the TUPE Regulations to ICTS UK Limited (ICTS).

After a period of absence due to work-related stress and depression, on 14 August 2014 the Claimant was dismissed from employment on the grounds of medical capability.  As one of the conditions of the entitlement to LTBD was that the Claimant remained an employee of ICTS, ICTS informed him that he was not entitled to receive it.

The Claimant brought claims of unfair dismissal and disability related discrimination before the Employment Tribunal.  The contractual provisions of the LTDB stated that for employees who had triggered their entitlement to such benefits, such entitlement would continue until “the earlier date of your return to work, death or retirement”. The Tribunal rejected ICTS’s argument that entitlement to LTDB ended when the Claimant returned to any full-time employment, and instead accepted the Claimant’s assertion that he was entitled to LTDB until he either returned to his original job as an International Security Co-ordinator, retired or died. The Tribunal determined that the dismissal constituted discrimination arising from disability and that it was ultimately unfair.

ICTS appealed the decision of the Tribunal regarding their basis for determination of the duration for which the Claimant was entitled to LTDB.

Decision of the Employment Appeal Tribunal

The EAT dismissed ICTS’s appeal. The EAT held that the Tribunal was correct to interpret the ambiguous provision of the “type of return to work” as meaning that the entitlement to LTDB did not cease. Under the insurance policy an eligible employee was entitled to LTDB until he returned to the job he had immediately before he became incapacitated for work. Therefore, the Claimant was entitled to LTDB until he returned to his job as an International Security Co-ordinator.

Practical considerations

Where LTDB schemes are used, employers should be wary of the eligibility criterion on which LTDB are paid out under the terms and conditions of their scheme. The courts will focus expressly on the language used to determine the duration of entitlement to LTDB, which can sometimes be misunderstood or misconstrued by employers.

¹ [2019] 3 WLUK 557