ICTS (UK) Ltd v Visram (Rev 1)

Where a long-term disability benefits booklet provides that payments continue until an employee’s return to work, that expression means a return to work for the employer. If the booklet is unclear about the type of work which ends entitlement, and expressly states that benefits are provided by an insurance policy, the policy may be used to resolve that ambiguity. A policy based on incapacity for the employee’s own occupation supports entitlement until the employee is fit to resume that occupation, dies or retires, subject to relevant scheme conditions.

An agreed award for ordinary injury to feelings does not determine a separate claim for aggravated damages. The tribunal must make accurate material findings and give adequate fact-based reasons for declining any additional award.

The Claimant, an international security co-ordinator, was dismissed for medical capability after prolonged absence caused by stress and depression. The Employment Tribunal held that the dismissal was unfair and disability discrimination. It later assessed remedy after reconsideration.

The employer appealed the Tribunal’s construction of the contractual long-term disability benefits scheme. It contended that benefits ended when the Claimant could perform any suitable full-time work. The Claimant cross-appealed the failure to make an additional award for aggravated damages arising from covert surveillance.

The central issues were the meaning of return to work, the proper use of the insurance policy referred to in the benefits booklet, and whether the Tribunal had adequately determined the aggravated-damages claim.

1. The employer’s appeal was dismissed. The phrase return to work was materially different from the phrase unable to work considered in Jowitt v Pioneer Technology (UK) Ltd [2003] IRLR 356. It meant returning to work for the employer, not merely becoming able to undertake suitable work elsewhere.

2. The booklet was nevertheless ambiguous as to whether a return to any job with the employer, or only to the employee’s pre-absence job, ended entitlement. It expressly stated that long-term disability benefits were provided by an insurance policy. The Tribunal was therefore entitled, and it was necessary, to consult that policy for this detail. The policy’s definition of a disabled member was based on incapacity to perform the employee’s own occupation immediately before incapacity. The Tribunal correctly concluded that entitlement continued until the Claimant was fit to return to that occupation, died or reached retirement age, subject to other scheme conditions.

3. The Claimant’s appeal was allowed. The agreed £14,000 award was for ordinary injury to feelings and did not include aggravated damages. The Tribunal made no adequate findings about the timing, scope and effect of the covert surveillance. Its assumption that surveillance followed the Claimant’s refusal to attend an assessment conflicted with evidence that investigators had been instructed earlier. It consequently failed to give adequate reasons for refusing an increased injury-to-feelings award or a separate aggravated award.

4. Compensation for future loss of disability and associated benefits was remitted. The Tribunal must apply the distinct compensation regimes in the Equality Act 2010 and the Employment Rights Act 1996, avoid double recovery, and determine the period of loss, possible lawful terminating events and mitigation. Its earlier four-year observation was not a finding forming the basis of its decision and will not bind the remitted Tribunal.

5. The aggravated-damages issue was also remitted, ordinarily to the same Tribunal.

• Employment Appeal Tribunal: The employer’s appeal against the long-term disability benefits ruling was dismissed. The Claimant’s appeal concerning aggravated damages and injury to feelings was allowed. Future compensation and aggravated damages were remitted.

• Employment Tribunal: In a remedy judgment sent on 29 January 2018, following reconsideration, the Tribunal held that long-term disability benefits were payable until return to the original job, death or retirement, and awarded £14,000 for injury to feelings without a further aggravated award.

• Employment Tribunal / earlier appeal: The liability judgment held the dismissal unfair and disability discrimination. An appeal from that liability decision was dismissed by HH Judge Eady QC on 26 July 2016.