Unsolicited telephone calls misusing our name - We do not nuisance cold call -
Have a question? Call us on 0800 1979 345
This article was published on January 11th, 2019
In this blog post, we explore whether an employer can dismiss an employee for capability reasons when they are contractually entitled to long term disability benefits.
The Employment Appeal Tribunal in Awan v ICTS says no.
Mr Awan went on long term sick leave. After six months’ full pay, he was contractually entitled to a disability benefit plan which paid two-thirds of his pay until he returned to work, retired or died. His contract did not refer to any insurance policy or scheme terms. The insurer refused to pay due to the employee’s previous TUPE transfer from another company with a different insurer. The employee was dismissed for capability reasons before the issues were resolved.
The employment tribunal found that the employee had been fairly dismissed. There was an express term in his contract that allowed the employer to dismiss on notice. No implied term – such as one not to dismiss whilst entitled to long term benefit payments – could override that express term.
The EAT disagreed. Mr Awan’s contract entitled him to benefit payments until he returned to work, retired or died, not until he was dismissed on capability grounds. It would completely undermine the purpose of the payment plan if the employer could dismiss the employee and deny him the benefit. The EAT said there was an implied contractual term not to dismiss the employee while he was entitled to long term benefits that required his continued employment. By dismissing him, the employer had breached that term, and therefore his contract.
In this case, the employer’s fatal error was that the employee’s contract did not refer to any insurance policy. The employer was obliged to pay regardless of whether an insurer covered the costs. Employers should link any PHI or long-term disability benefit plans to specific insurance policies. Limitations under the policy and insurer rules should be brought to an employee’s attention.
This website privacy notice sets out how Thorneycroft Solicitors uses and protects any information that you give Thorneycroft Solicitors when you use this website.
Thorneycroft Solicitors is committed to ensuring that your privacy is protected. Should we ask you to provide certain information by which you can be identified when using this website, then you can be assured that it will only be used in accordance with this privacy statement.
Thorneycroft Solicitors may change this policy from time to time by updating this page. You should check this page from time to time to ensure that you are happy with any changes. This policy is effective from 01/05/2018.
What we collect
We may collect the following information:
We will collect the information directly from you via completion of our enquiry form on the website.
What we do with the information we gather
We require this information to understand your needs and provide you with a better service, and in particular for the following reasons:
We will also collect and process your personal data if you have consented to receiving marketing in respect of our services. You are able to unsubscribe or withdraw your consent at any time by emailing [email protected] or writing to ‘Marketing’ at Thorneycroft Solicitors, 9a Bridge Street Mills, Bridge Street, Macclesfield, Cheshire SK11 6QA.
We are committed to ensuring that your information is secure. In order to prevent unauthorised access or disclosure, we have put in place suitable physical, electronic and managerial procedures to safeguard and secure the information we collect online.
If you do not instruct us in relation to your legal matter, your personal details will be retained for a period of 12 months.
If we are instructed in relation to your legal matter, we will keep it in line with our data retention periods. Details of our retention period for your legal matter can be found within our Client Care Letter and/or Terms of Business, under the heading file retention.
Links to other websites
Our website may contain links to other websites of interest. However, once you have used these links to leave our site, you should note that we do not have any control over that other website. Therefore, we cannot be responsible for the protection and privacy of any information which you provide whilst visiting such sites and such sites are not governed by this privacy statement. You should exercise caution and look at the privacy statement applicable to the website in question.
You can set preferences for how Google advertises to you using the Google Ad Preferences page, and if you want to you can opt out of interest-based advertising entirely by cookie settings or permanently using a browser plugin.×