The Court of Appeal that it did not mean this in ICTS (UK) Limited v Visram.
Mr Visram worked for American Airlines at Heathrow. He was TUPE transferred to ICTS while on sick leave. Prior to the transfer he was entitled to receive long-term disability benefit (LTDB) provided by Legal & General (L&G).
After the transfer ICTS ran an LTDB scheme that was underwritten by Canada Life.
L&G refused to continue the LTDB payments to Mr Visram after the TUPE transfer because the transfer took place before expiry of the deferred period. Canada Life refused the benefit because the illness occurred prior to the inception of its policy. Mr Visram brought a claim.
At first instance the employment tribunal held that it was the primary obligation of ICTS to make the LTDB payments as long as the Claimant satisfied the definition of disability. The EAT upheld this decision.
The Court of Appeal held that ICTS was liable for continuation of the payments. The natural construction of ‘return to work’ in the policy terms means return to previous work and not return to any suitable work. ‘Unable to work’ cannot mean incapacitated from any and every purposeful activity.