The Employment Appeal Tribunal (EAT) have recently held an employee to hold ‘an implied right not to be dismissed’ when on long-term sick leave.
Naturally, this has caused many employees great concern because long-term sickness absence, in itself, is usually fair reason to consider dismissal. Whilst there can be various factors at play, including any potential disability of the employee, the principle of an individual having to be present at work to fulfil their job role (and employment) remains.
So what happened in the recent case of ICTS (UK) Limited v Mr A Visram to cause such concern?
Well, let’s set the scene briefly, Mr Visram was contractually entitled to sickness benefit payments (termed ‘Long Term Disability Benefits’) during any period of continuous sickness absence from employment whilst he remained an employee. But, for various reasons, the insurer and employer didn’t wish to pay them and, in doing so, Mr Visram was dismissed on grounds of sickness absence and so ended his entitlement to contractual Long Term Disability Benefits payments by the insurer (as the policy required his continued employment).
The EAT accepted that Mr Visram, on the reading of the relevant policy wording, was contractually entitled to contractual Long Term Disability Benefits until his return to his job, death or retirement at age 68. In fact, the wording was so wide that, technically, Mr Visram could remain entitled to them until death or retirement at age 68 if the sickness or condition was serious enough.
The EAT also accepted that Mr Visram’s dismissal on grounds of medical capability constituted discrimination arising from disability (which we’ll take as read) and was, therefore, an Unfair Dismissal.
In considering whether the employer could have fairly dismissed the employee on grounds of sickness absence, the EAT made the decision that ‘without good cause’ (which it seems to have impliedly defined as ‘exceptional circumstances’) the employer should have avoided the dismissal of any employee in this situation. The main reasoning being that the whole point of the policy was to provide financial cover for employees who were unable to work and/or return to work and, if dismissal could fairly follow in relation to sickness absence, it would deprive staff members in the sole scenario where the financial cover actually ever applied!
Put more plainly, the Tribunal impliedly held that allowing dismissal on sickness absence grounds would make the Long Term Disability Benefits fairly pointless (and make a mockery of the ‘Long Term’ provision within the title) in situations where continued employment was an express condition of those contractual benefits being paid.
So what is the morale of the story here? Well, put simply, employers should be wary of offering contractual Long Term Disability Benefits schemes or, at very least, provide a maximum length of time for cover and/or make them ‘discretionary’ in nature. However, in terms of those employees already contractually entitled to such schemes, it may be worth considering seeking mutual agreement to amendment of the scheme (potentially in return for a pay rise) and, if not, to obtain specialist legal advice before considering their dismissal.