The Court of Appeal decision in ICTS (UK) Ltd v Visram is a reminder to employers to make sure that contractual sickness policies are tightly drafted. Failing to spell out what was meant by a "return to work" resulted in a significant liability for the employer in the case.
Mr Visram was contractually entitled to long term disability benefits of two thirds of his base salary if he was absent from work and unable to work for more than 26 weeks. His entitlement continued until his return to work, death or retirement. His former employer had taken out an insurance policy that covered its liability to pay the benefits but the cover ceased when the employee was TUPE transferred to ICTS. ICTS refused to pay the benefits, arguing that it was only required to do so while the insurance policy was in place, and Mr Visram was eventually dismissed on grounds of ill health.
His disability discrimination and unfair dismissal claims succeeded and the tribunal and EAT both found the employer liable to pay disability benefits until the point at which the individual could have returned to the job he held before his absence as part of compensation. The employer appealed, arguing that it was only liable until the point at which the employee was able to perform suitable work.
The Court of Appeal dismissed the appeal. The reference to "return to work" in the contractual documentation did not mean a return to any suitable, full paid work that the individual was capable of carrying out. If that had been the intention, it would have been possible to include a provision to that effect. In the context in which it was used, it was clear that a return to work meant a return to the job held before the absence. The fact that another case had interpreted the meaning of "unable to work" in a different way was irrelevant, given that it was dealing with a different contractual framework.
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