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How long have you been off sick for? Also, how long have you been employed there?
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Whether you receive any of these incapacity benefits after your employment terminates will depend entirely on the policy terms. This is not so much a legal issue in terms of it being covered by laws or legislation, rather it is a contractual matter because it is a private and discretionary benefit and what you get will depend entirely on what the terms of the insurance scheme you are covered under say. Therefore, in the first instance you need to contact the company which provides this cover or the employer directly, and check whether you will continue to be covered should your employment be terminated. Also it is important to check if the reasons for your termination will affect your entitlement under this policy.
In terms of your direct legal rights these will be linked to the way you are treated for being off on long term sick leave. For example you should not be selected for redundancy just because you have been off for a prolonged period of time. If you are then that could amount to disability discrimination and you will have certain rights against that.
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Hi Coral, unfortunately I cannot tell you whether you will be covered or not because this is not a matter dealt with under law – it is a purely contractual issue which would be covered by the policy terms. If the employer does not tell you what your entitlement may be then you could ask them to give you permission to approach the insurer on their behalf, basically giving you authority to approach them directly. If they do not reply to this request then you could consider raising a formal grievance with the employer which is a formal complaint which should be dealt with officially by them and it should hopefully resolve this for you.
Hi, It could be relevant, there are a few cases on this subject:
In Aspden a PHI policy provided that employees who were wholly incapacitated from working by sickness or injury would receive three quarters of their salary until death or retirement, provided only that they remained in the company’s employment. The High Court held that there was an implied contractual term to the effect that the employer would not terminate the contract while the employee was incapacitated for work and could qualify for benefits under the policy, except in the event of gross misconduct
In Hill v General Accident Fire & Life Assurance Corporation plc, the Court of Session considered an argument by an employee, relying on Aspden, that it was an implied term of the parties’ contract that the employer would not use its contractual powers of dismissal (in this case for redundancy) where this would frustrate an accruing or accrued entitlement under the sickness benefit or ill-health retirement pension scheme such that the employee would not be dismissed from his employment while incapacitated except for a summary dismissal by the employer by reason of his fundamental breach of contract. The Court of Session considering Aspden rejected the implied term argued by the employee and disagreed with any general proposition that gross misconduct was the only circumstance in which an employer could lawfully dismiss an employee in receipt of sick pay and with the prospect of permanent sickness provision. It also noted that Aspden had not considered the possibility of genuine redundancy dismissal.
Also, in Lloyd v BCQ Ltd the employee (who had been dismissed for ill-health) argued that where a PHI scheme was in existence, there was an implied term that the employer would not dismiss an employee who was in receipt of those benefits while the employee was incapacitated from work where the effect would be to disqualify the employee from receiving the benefits. The EAT found that, on the facts, Mr Lloyd did not have a contractual entitlement to PHI and that there was no scope for implying a term where there was an express term entitling the employer to dismiss.
So as you can see there is n direct answer and the courts do appear to reach different decisions and each one will depend on the specific facts so until you go to court you would not know if your situation would be covered.
You are most welcome, best of luck
Hi Coral you probably may not be able to see the policy but they should obviously advise you correctly as to what your entitlements under it are. In the end if they refuse to provide that information you have to decide whether to make a claim and if you do then as part of the disclosure process they will need to disclose it anyway
Yes you can ask them of course and they should tell you, after all you are paying for this benefit personally. I know they could potentially tell you anything but you will have to take it that they are telling the truth. It would make no difference to the employer whether you get the benefits or not
Yes certainly, it may twist their arm a bit
You are welcome