Frustration of contract
[page 74]The concept of “frustration” rarely applies to employment contracts. It’s a doctrine that arose in the context of commercial contracts and it means that something has happened that is beyond the control of the parties that makes it impossible for the contract to be performed.
When a contract is frustrated, it ends automatically by operation of law and there is no dismissal. This means that an employee would have no claim for unfair or wrongful dismissal.
Though it is rare, the doctrine of frustration does come up from time to time in relation to employment cases. For example, it has been applied where an employee received a long prison sentence and when someone became disabled and could no longer perform their work. The Employment Appeal Tribunal (EAT) considered it in the case of Warner v Armfield Retail & Leisure Limited [2013] UKEAT 0376/12 and held that the employment contract had been frustrated when the employee was left unable to work following a stroke. However, the EAT said that before frustration could be considered, the tribunal must examine whether there had been a breach of the duty to make reasonable adjustments under what is now the Equality Act 2010.