Sickness absence and frustration of contract

There will be no dismissal if a contract of employment is frustrated. Frustration is the legal term used to describe what happens to a contract when an unexpected event takes place through no fault of either party, so serious that the contract can no longer continue. An example might be a long custodial sentence.

Arguments based on the doctrine of “frustration” should not be used by employers in cases of long-term sickness absence. In Warner v Armfield Retail & Leisure Limited [2013] UKEAT/0376/12/SM, the EAT said injury or ill-health is very unlikely to “frustrate” an employment contract, since employees becoming sick or disabled is neither “unexpected” nor “out of the ordinary” in a normal workplace.

The doctrine of frustration is not appropriate for a work setting because it prevents employees challenging the fairness of their dismissal. “Frustration” ends a contract automatically. This means there is no dismissal – and no way to claim unfair dismissal.