Frustration – Change of circumstances – Employee suffering stroke and going on sick leave – Employer terminating employee’s employment
Warner v Armfield Retail & Leisure Ltd: Employment Appeal Tribunal: 8 October 2013
The employer company specialised in the refurbishment of retail outlets and public houses. The employee was employed as a site manager. His role required a high level of mobility and he undertook carpentry when required. In February 2010, the employee suffered a severe stroke. It was common ground that from that time onwards he was a disabled person. Although there was no contractual obligation to pay sick pay, the employer paid the employee full pay until the end of May.
The employee did not contact the employer to say that he anticipated a return to work. In January 2011, the employer wrote to the employee sending him a cheque for accrued holiday pay and his P45, and confirming the end of his employment. The employer subsequently explained that the reason for the termination of the employee’s contract was capability on medical grounds. The employee commenced proceedings in the employment tribunal for unfair dismissal, breach of contract and disability discrimination. The tribunal had before it a doctor’s report from October 2011 which found, inter alia, that the employee’s mobility was still substantially affected and dexterity in his left had was markedly reduced. The tribunal dismissed the claims, holding that the employee’s contract had been frustrated by operation of law and that the employer had not discriminated against him. The employee appealed.
The employee submitted, inter alia, that: (i) there was no room for the doctrine of frustration once a duty to make reasonable adjustments arose; and (ii) the tribunal had failed to deal with his submission that the employer had treated him unfavourably by failing to carry out any form of capability procedure and by dismissing him without any procedure.
The Employment Appeal Tribunal ruled:
(1) It was established law that the doctrine of frustration applied to contracts of employment, even where those contracts were terminable on short notice. In the case of a disable person, before the doctrine of frustration could apply there was an additional factor which the tribunal had to consider over and above other factors identified in the relevant authorities; namely whether the employer was in breach of a duty to make reasonable adjustments. Whilst there was something which it was reasonable to expect an employer to have to do in order to keep the employee in employment the doctrine of frustration could have no application (see ,  of the judgment).
In the instant case, the tribunal had considered whether the employer was in breach of the duty to make reasonable adjustments and found that it had not been. The tribunal had applied the correct test and its conclusion could not be impugned.
The appeal in respect of the frustration finding would be dismissed (see  of the judgment).
(2) On the facts, the tribunal had not dealt with the employee’s submission that the employer had treated him unfavourably by failing to carry out any form of capability procedure and by dismissing him without any form of enquiry or procedure. It was arguable that that had been unfavourable treatment and that it had been because of something arising in consequence of his disability. Findings were required as to whether the employer had behaved as it had because of something arising in consequence of the employee’s disability, whether it had amounted to unfavourable treatment and whether it had been justified (see ,  of the judgment).
The appeal would be allowed in respect of the issue concerning discrimination arising out of disability and the matter would be remitted to the same tribunal for it to consider (see ,  of the judgment).
Heather Platt (instructed by Frettons, Christchurch) for the employee; Cyril Adjei (instructed by Meadows Ryan, Weybridge) for the employer.