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. 


Tribunals very rarely allow employers to apply the doctrine of frustration to ill-health dismissals, especially because it eliminates any scope for employees to challenge the fairness of their dismissal. This is because the legal effect of a contract being “frustrated” is that it comes to an end automatically. There is no dismissal, and therefore no possibility of claiming unfair dismissal. 


In a rare example, Warner v Armfield Retail & Leisure Limited [2013] UKEAT/0376/12/SM, the EAT made it clear that in an employment relationship, “frustration” of the employment contract would be very unusual because long-term sickness absence and disability are not “unexpected” , or “out of the ordinary” in any normal workplace. In the unlikely event that the doctrine of “frustration” is triggered by a long-term sickness or injury, where the employee is disabled an employment contract can only ever be “frustrated” if there are no reasonable adjustments that could be made to enable the employee to return to work.