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 that is so serious that the contract can no longer continue. An example might be a long custodial sentence. 


Tribunals rarely allow employers to apply the doctrine of frustration to ill-health dismissals, not least because it prevents employees challenging 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 Warner v Armfield Retail & Leisure Limited [2013] UKEAT/0376/12/SM, the EAT spelled out that in the employment relationship, “frustration” of the employment contract for reasons relating to injury or ill-health would be very unusual, because long-term sickness absence and disability are not “unexpected”, or “out of the ordinary” in the workplace.
In any event, the EAT in Warner has ruled that the employment contract of a disabled employee can only be frustrated if no reasonable adjustments could enable a return to work.