Warner v Armfield Retail and Leisure Ltd (Contract of Employment : Frustration): EAT 8 Oct 2013

DISABILITY DISCRIMINATION – Disability related discrimination
For the purposes of claims of unfair dismissal and breach of contract the Respondent argued, and the Employment Tribunal accepted, that the Claimant’s contract came to an end by virtue of the doctrine of frustration. It was argued that this doctrine had no application where there was a duty to make reasonable adjustments.
Held: the Employment Tribunal did not err in law in holding that the Claimant’s contract of employment came to an end by virtue of frustration. In the case of a disabled person, before the doctrine of frustration can apply there is an additional factor which the Tribunal must consider over and above the factors already identified in the authorities – namely whether the employer is in breach of a duty to make reasonable adjustments. While there is something which (applying the provisions of the Equality Act 2010) it is reasonable to expect the employer to have to do in order to keep the employee in employment the doctrine of frustration can have no application. But where, as the Tribunal found in this case, there was no breach of the duty to make reasonable adjustments, the Tribunal was entitled to find that the contract was frustrated. Thorold v Martell Press [2002] 0343/01 EAT considered and applied.
For the purposes of the Equality Act 2010, however, the Respondent did not argue that the contract of employment came to an end by frustration – dismissal was admitted. The Tribunal found that dismissal was a proportionate means of achieving a legitimate aim, but did not deal with the Claimant’s submission that the Respondent treated the Claimant unfavourably by failing to carry out any form of capability procedure, however rudimentary, and by dismissing him without any form of enquiry or procedure. Remitted for that matter to be considered.

David Richardson J
[2013] UKEAT 0376 – 12 – 0810
Equality Act 2010
England and Wales
CitedR Thorold v Martell Press Ltd EAT 8-Mar-2002
EAT Unfair Dismissal – Procedural fairness/automatically unfair dismissal. . .

Lists of cited by and citing cases may be incomplete.


Updated: 22 November 2021; Ref: scu.516760