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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> ICTS (UK) Ltd v Visram [2020] EWCA Civ 202 (20 February 2020) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2020/202.html Cite as: [2020] IRLR 365, [2020] EWCA Civ 202 |
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HON MRS JUSTICE SLADE
UKEAT/0133/18/BA
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE BAKER
and
LORD JUSTICE PHILLIPS
____________________
ICTS (UK) LIMITED |
Appellant |
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- and - |
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ANTHONY VISRAM |
Respondent (Claimant) |
____________________
Oliver Isaacs (instructed by O H Parsons LLP) for the Respondent (Claimant)
Hearing date: 12 February 2020
____________________
Crown Copyright ©
Lord Justice Bean :
The Booklet
"a long-term disability plan that, when integrated with public disability benefits, will pay an annual payment of two thirds of salary at the time of disability.
...
Information on this Benefit plan, including eligibility requirements, benefit levels and administrative procedures are to be found in the Company's booklet, "Employee Retirement, Death and Disability Plans"."
"(G) LONG TERM DISABILITY BENEFITS
Should you be absent from, and unable to, work due to sickness or injury for a continuous period of twenty-six weeks or more, you will receive a Disability Income of 2/3rds of your Base Annual Salary less the State Invalidity Pension.
The disability income will commence twenty-six weeks after the start of your absence. It will continue until the earlier date of your return to work, death or retirement.
The disability income is treated as normal pay and is subject to the necessary PAYE deductions. Any long-term benefits that you receive from the State will be payable directly to you and not via the Company.
All Employees
During the period that you receive disability income you will remain a member of the UK Life Assurance Plan and will be covered for the appropriate death-in-service benefits.
Pension Plan Members
During the period that you receive disability income you will remain a member of the UK Pension Plan and your own and the Company's Contributions will be based on your disability income."
The Insurance Policy
"The Long Term Disability benefits are provided by an Insurance Policy."
"...at any time,
(i) in the opinion of Legal & General, is incapacitated by an illness or injury which prevents him from performing his own occupation, and
(ii) continues to be in Employment, and
(iii) is not engaged in any other occupation, other than one which gives rise to payment of a partial benefit."
For the purposes of (i) above
(a) "own occupation" means the essential duties required of the Insured Member in his occupation immediately prior to the commencement of the Deferred Period, and
(b) The Insured Member's capacity to perform the essential duties of his own occupation will be determined whether or not that occupation remains available to him."
"Duration of Benefit
Subject to production to Legal & General of evidence of the Insures Member's entitlement to benefit, in such form and at such times as Legal & General may reasonably require, and to the remaining provisions of this Section, payment of Member's Benefit will continue so long as the Insured Member is a Disabled Member but not in any event after Benefit Termination Date or, if earlier, the death of the Insured Member."
"Regardless of anything in these provisions to the contrary the insurance under this Policy of an Insured Member will terminate: immediately in the event of an Insured Member ceasing to be in Employment…"
The Claimant's absence from work and dismissal
The proceedings
The ET remedy judgment (12 January 2018)
The EAT decision (18 April 2019)
The appeal to this court
"5.3 Long Term Disability
The Company runs a scheme that is designed to provide an income during lengthy periods of absence due to prolonged sickness or injury. Permanent and Established members of staff are entitled to two thirds of normal pay (inclusive of State benefits) after 26 weeks continuous absence through illness or disability, for as long as they are unable to work up to date of retirement, as certified by a medical practitioner and, if necessary, confirmed by the Company's doctor." [emphasis added]
"In my judgment … "unable to work", in the present context cannot mean incapacitated from any and every purposeful activity. In my judgment, an employee is "unable to work" for the purposes of clause 5.3 if there is no continuous remunerative full-time work which he can realistically be expected to do: compare Walton v Airtours [2003] IRLR 161. The scheme set out in clause 5.3 in the context of the handbook and the employment relationship is there, in other words, to cushion the earnings of employees who become so disabled that they can neither be found other work within the organisation nor realistically be expected to find employment elsewhere."
Lord Justice Baker:
Lord Justice Phillips
UPON hearing Michael Duggan QC for the Appellant company and Oliver Isaacs of counsel for the Respondent Claimant:
IT IS ORDERED THAT
1. The appeal be dismissed with costs summarily assessed at £18,828.72.