The claimant worked for the respondent (and its predecessor company) since 1992 as a security co-ordinator.  In the claimant’s terms and conditions of employment it stated that long-term disability benefit was available for those who:

‘…were absent from, and unable to, work due to sickness and injury for a continuous period of twenty-six weeks or more.’

This disability benefit would be paid from 26 weeks after the absence until the return to work, death or retirement of the employee.   The claimant was absent due to work related stress and depression from 2012 until he was dismissed in August 2014 on the grounds of medical capability.  In the background, with his employment transferred the long-term disability benefit was also moved from one insurer to another.  When the claimant sought the disability benefit the insurer refused to indemnify the respondent citing that the employment had transferred before the ‘deferred period’ under the terms of the policy had elapsed.  The first insurer did step in and agreed to pay the disability until September 2014.  The issue that arose was that the respondent argued that the ‘return to work’ element which would stop the long-term disability benefit should include other roles rather than the same role the claimant was in. The claimant brought proceedings for unfair dismissal and unlawful disability discrimination.

The ET and EAT both upheld the claimant’s case stating that the interpretation of ‘return to work’ related to the original job that was undertaken.  The employer appealed this to the Court of Appeal citing Jowitt v Pioneer Technology (UK) Ltd [2003] which stated that it should be read as ‘unable to work’ meaning that returning to work albeit in a different role would also apply.   The Court of Appeal rejected this assertion stating that Jowitt was not binding and that in any case the interpretation is one that is particular to the individual contracts.   The fact that the claimant’s contract stated ‘your return to your previous work’ was regarded as being the natural construction of the phrase ‘return to work’ in the paragraph dealing with the long-term disability benefit.  It would have been for the drafters of the contract to make it clear that the ‘return to work’ was general and not specific to the previous role.  As a result, the appeal was dismissed.

Practical Lessons

This case demonstrates the importance of ensuring that the terms and conditions of employment are drafted clearly and state the aim sought.  The use of ‘return to work’ was crucial rather than the use of ‘unable to work’ as was seen in Jowitt.  This led to two opposite results on what may seem like, on the face of it, fairly insignificant wording.   Therefore, employers and advisors should be mindful of the particular effect that the wording may have and the rights that it may then give to employees.
https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2020/202.html&query=(ICTS+OR+(UK)+OR+Ltd+OR+v+OR+Visram)