This week’s case round-up
Employers need to offer a helping hand
Walton v Airtours plc and another, C/A, 5 November 2002
In a week where the Department for Work and Pensions announced retention
statistics for employees becoming sick or disabled at work, this case
highlights once again that employers cannot entirely devolve themselves of
responsibility in this area.
Walton was employed by Airtours as an airline pilot, but he became unable to
work due to chronic fatigue syndrome. His terms and conditions of employment
reflected the provisions of the company’s permanent health insurance (PHI)
policy, which stated that PHI benefits would only continue after 24 months if
the employee was unable to ‘follow any occupation’.
Walton received PHI benefits for 24 months. At the end of this period, a
medical report was obtained which indicated that he was not unfit for any type
of work, and could cope both physically and mentally with less demanding jobs
if he was offered appropriate support and rehabilitation by the company.
Benefit payments ceased accordingly, and Walton’s employment was terminated.
As a result, however, Walton issued High Court proceedings against Airtours,
alleging that it had wrongly terminated his employment and entitlement to
benefits under the PHI policy.
The court found that since Walton was fit to undertake light sedentary work,
provided he received rehabilitation and support from Airtours, the company’s
failure to do so meant he was prevented from following an occupation – for
example, in accordance with the scheme rules. He therefore remained entitled to
benefits under the PHI policy until such time as appropriate support and
rehabilitation were made available to him.
Unreasonable does not necessarily mean inadmissable
Jones v University of Warwick, CA, 4 February 2003
With the new laws governing workplace monitoring, it is difficult to know
what is permissible and what is not. The courts also struggle to balance the
need to hear all the evidence while not condoning intrusion into employees’
private lives.
Jones brought proceedings against the university, claiming continuing
disability from a personal injury. The university disputed that her disability
was continuing, and its insurers hired a private investigator who secretly
filmed her at home. Jones contended the evidence was inadmissible, relying on
the court’s discretion under CPR 32.1(2) and Article 8(1) of the European
Convention on Human Rights – right to respect for private life.
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While clearly uncomfortable with the insurers conduct, the Court of Appeal
decided the video was admissible evidence. It acknowledged the difficulty in
reconciling the benefit to the court of having all the evidence available and
the improper way in which it had been obtained. But it concluded that it would
be both artificial and undesirable for relevant and admissible evidence not to
be placed before the judge trying the case.
In reflecting its disapproval of such conduct, however, the court made an
order of costs against the university, on the basis that it was the conduct of
the university’s insurers that had given rise to litigation over the
admissibility of the evidence.
