ICTS (UK) Ltd v Visram

In a contractual long-term disability scheme, the meaning of unable to work and return to work depends on the wording and context of the contract. Where the trigger is absence from and inability to perform the employee’s previous work for 26 weeks, a continuation clause referring to return to work ordinarily means return to that previous occupation. It does not automatically mean that benefit ends when the employee can undertake any suitable full-time remunerative work. A differently worded authority such as Jowitt v Pioneer Technology UK Ltd, [2003] ICR 1120, does not impose a universal construction.

Mr Visram’s employment transferred from American Airlines to ICTS under the Transfer of Undertakings (Protection of Employment) Regulations 2006. His contract included a long-term disability benefit booklet providing for payment after 26 weeks’ absence and inability to work, continuing until return to work, death or retirement. Following findings of unfair dismissal and disability discrimination, the Employment Tribunal construed return to work as return to his original role and assessed compensation on that basis. The Employment Appeal Tribunal dismissed ICTS’s appeal in UKEAT/0133/18/BA. ICTS appealed, arguing that benefit ended when Mr Visram could undertake suitable full-time work. The central issue was the proper construction of the benefit wording.

1. Appeal dismissed. The appeal was dismissed with costs summarily assessed at £18,828.72.
2. The meaning of a long-term disability benefit provision depends on its wording and context. Jowitt v Pioneer Technology UK Ltd, [2003] ICR 1120, was not binding authority for the general proposition that inability to work always means the absence of any continuous remunerative full-time work which the employee could realistically be expected to do. Jowitt concerned different wording and context, including a separate provision dealing with employees unable to perform their normal job but capable of alternative internal work. It was therefore distinguished.
3. The benefit booklet first provided for payment where the employee was absent from and unable to work because of sickness or injury for 26 weeks. It was common ground that this trigger referred to inability to perform the employee’s previous work. Accordingly, the subsequent reference to the employee’s return to work naturally referred to return to that previous work. In this case, that meant the role of International Security Coordinator. Benefit therefore continued until return to that work, death or retirement, rather than ending when suitable alternative full-time employment became possible.
4. Because the booklet’s meaning was clear, it was unnecessary to decide whether the insurance policy could be used as an aid to construction.

• Court of Appeal (Civil Division): on 20 February 2020, dismissed ICTS’s appeal from the Employment Appeal Tribunal and ordered costs.
• Employment Appeal Tribunal: on 18 April 2019, dismissed ICTS’s appeal and upheld the Employment Tribunal’s remedy decision in UKEAT/0133/18/BA.
• Employment Tribunal: after findings of unfair dismissal and disability discrimination, construed the long-term disability benefit as continuing until return to the claimant’s original work. The remedy judgment was sent on 12 October 2017 and varied in minor respects on reconsideration on 12 January 2018.