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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50202
Experience:  Qualified Employment Solicitor
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I'm a concerned disabled employee, currently on long term

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I'm a concerned disabled employee, currently on long term sick leave due to my disability, with no idea if or when I will be well enough to return to work. I am now receiving GIP benefits through my Employer scheme, but also facing redundancy due to a major company restructure, and I am concerned I will lose my GIP benefit when I am made redundant, I do not know the legalities of my situation.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

How long have you been off sick for? Also, how long have you been employed there?

Customer: replied 1 year ago.
I have been off since January. I have continuous service of 18 years. The redundancy consultation began in June. Thank you.

OK, thank you for your response. I will review the relevant information and laws and will get back to you in a short while. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your questions to the back of the queue and you may experience unnecessary delays. Thank you.

Apologies for not getting back to you sooner, I experienced some temporary connection issues and could not get back on the site until now. All appears to be resolved now so I can continue dealing with your query.

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.

This is your basic legal position. I have more detailed advice for you in terms of the rights you have should you be treated detrimentally in the redundancy procedure, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Hi Ben thank you for your advice.I have asked the GIP insurer whether I can be made redundant whilst receiving GIP and they were unable to answer and referred me to my employer. I also asked the insurer for a copy of the policy and they told me they couldn't provide me with a copy as I am not the policyholder, and that I should ask my employer for a copy of the policy. I have asked my employer for a copy of the policy but they have not responded in any way to that request.When I asked my employer if being made redundant would affect my GIP benefit they replied to say they were looking in to the possibility of retaining the benefit but they could not confirm or guarantee anything at that time.The benefit is provided by my employer but I contribute towards that benefit to increase the level of cover provided.I look forward to hearing from you further.ThanksCoral

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.

Customer: replied 1 year ago.
Hi Ben thank you, ***** ***** I will struggle to get the information from my employer or that they will allow me to request it from the insurer direct.I just feel very lost and confused. I was reading some information whilst trying to research this myself and came across the Aspden v Webbs Poultry case of 1996 and I wonder if that bears similarities to my situation.ACAS also advised I would need to check whether my GIP was part of my contract which I believe it is as we are not allowed to opt out of this benefit but we can contribute ourselves to increase the level of cover on offer which I do. Therefore if I can prove that the GIP does form part of my contract does this strengthen my position at all?Thanks

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.

Customer: replied 1 year ago.
Hi Ben it looks like I need to hope that my employer and GIP insurer will allow the retention of GIP benefit then.Thank youCoral

You are most welcome, best of luck

Customer: replied 1 year ago.
Hi Ben, i have asked my employer for a copy of the GIP policy and they have replied as follows:"I have been advised that the policy is the property of BNP and not for general circulation I’m afraid. Do you have some specific questions I can go back with for you?"I am not sure where this leaves me, if I am not able to see the policy, bearing in mind I also personally contribute to this policy, how do I know how I am covered/protected by this policy?Do I have a right to see this policy at all? If not then where do I go from here?ThanksCoral

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

Customer: replied 1 year ago.
Hi Ben thank you. Am I within my rights then to simply ask them to tell me what my entitlements are under this policy when facing redundancy and should I expect them to tell me? What worries me is that they could tell me anything but I have no way of knowing what is true and what isn't.I can't understand why I can't see the policy when I make contributions via my salary for this benefit. Previously I had access to the policy T's & C's before my employer changed from GE Capital to BNP Paribas. How am i meant to make a decision about whether to bring a claim if I don't have any facts to hand on which to base that claim?Seems the employer is the protected and the employee is left out in the cold.

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

Customer: replied 1 year ago.
Would it be wise to inform my employer I have sought independent advice?

Yes certainly, it may twist their arm a bit

Customer: replied 1 year ago.
I have replied advising I am seeking independent advice and have again asked the question:"Will I continue to receive GIP benefits following redundancy"I will let you know how/if they respond.Thank you for your assistance thus far.RegardsCoral

You are welcome