The claimant in ICTS (UK) Limited v Visram had a right under his contract of employment to the benefits of a long-term disability benefits (LTDB) plan, funded by an insurance policy taken out by the employer. Under the plan, he would receive benefits after 26 weeks' sickness absence.
In 2012, the claimant went on sick leave with work-related stress and depression. Whilst he was absent, there was a TUPE transfer of the business. He did not receive benefits after 26 weeks so brought a grievance which resulted in the insurer reinstating his LTDB benefits, but only for one year. The claimant was subsequently dismissed for capability on the basis of his ill-health and long term sickness absence.
The Employment Tribunal found that the dismissal was unfair. There was an obligation on the transferee employer to make the LTDB plan payments – the claimant had a contractual right to the benefits. In addition, in line with cases such as Aspden v Webbs Poultry and Meat Group (Holdings) Ltd, there was an implied term in his contract of employment that he would not be dismissed except for a reason other than ill-health where that would prevent him from receiving the LTDB benefits.
The dismissal was also discrimination arising from a disability. The employer failed in its argument that it was justified on the basis that they needed to remove him from the payroll. The Tribunal found there was no evidence that there was a real need to do this – his continued employment caused no operational difficulty; it was simply a tidying up exercise.
The EAT upheld both these findings.
It is possible to attempt to defeat the Aspden implied term by including an express clause in the contract allowing the employer to dismiss even if it would prejudice entitlement to PHI benefits, but this would not have helped on the disability discrimination claim.