An employee who was dismissed because of ill health and agreed to receive an insurance payout to cover his salary until retirement was not unfairly dismissed, the Employment Appeal Tribunal (EAT) has found.
Claimant Mr Riley, who is autistic and experiences mixed anxiety and moderate depression, was a home claims adviser for Direct Line Insurance Group.
He was enrolled on a private health insurance scheme provided by Unum and had taken an upgraded version of the scheme that offered support until retirement age in the event of incapacity.
From 2014 until October 2017 Riley was absent from work with anxiety and depression. For much of this period he was paid 80% of his normal salary under the Unum scheme.
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An assessment carried out in 2017 proposed a phased return to work and recommended he should be provided with noise-cancelling headphones and managers should undergo autism awareness training.
After a five-month phased return, Riley started to take live calls, but after a month he contacted his managers to say he could not come to work because of his mental health.
His GP declared him unfit to work because of his anxiety and paranoia.
Direct Line Insurance Group contacted Unum, telling them it was “difficult to see that Mr Riley would recover sufficiently to perform his role in the near or medium future”.
Following a meeting with Unum, Direct Line informed Riley that he would be able to leave his job at the company but Unum would continue to pay his salary until retirement age.
Riley replied: “It all makes sense. I know really this is where it’s been heading for the last four years. This ties it all up as I do not have to think about how I am going to get back into work and what a phased back to work will look like and when I am going to be able to come to work.”
Riley agreed that his employment should end and he was informed that he would be dismissed on 19 September 2018 on grounds of capability due to ill health. The letter reminded him of his right to appeal.
He took a claim for unfair dismissal to the employment tribunal in 2019. Riley argued he had been in some way “tricked” into leaving the company and claimed did not understand what he had been told in the meetings.
The tribunal dismissed his claim, finding that he had made an informed decision and that no pressure had been placed on him to leave the firm. It agreed with Direct Line that he had left his job by mutual consent, even though the word “dismissal” had been used.
Riley challenged the employment tribunal’s judgment, stating that it failed to identify and set out the relevant law. However, the EAT rejected this argument, finding that although the tribunal did not spell out the law, the tribunal panel did not fail to ask the right questions.
The EAT’s judgment, published this month following a hearing in July, finds there was “ample evidence for the conclusion reached and the tribunal considered in detail whether Mr Riley’s consent was freely given”.
The tribunal also found that Direct Line had failed to make the two reasonable adjustments that had been recommended, but said Riley’s claim in relation to this had been made out of time. This decision was also upheld by the EAT.
Direct Line Insurance Group has not commented on the case.
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