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 very 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 is very unusual, because long-term sickness absence and disability cannot be said to be “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, then where the employee is disabled, an employment contract can only be “frustrated” if no reasonable adjustments could be made to enable a return to work.