Related posts:No related photos. On appealOn 15 Jan 2002 in Personnel Today Previous Article Next Article Comments are closed. Continuing our regular series on the implications of recent significantcases. James Humphery, partner atThethowans Solicitors, Southampton, looks at the issuesIllness and Frustration Hogan v Cambridgeshire County CouncilUnreported decision of EAT Case382/99 HR Professionals often find themselves grappling with the concept of a‘frustrated’ contract in the context of an employee’s long-term illness. Ifsomething unforeseen occurs making a contract impossible to perform, the lawmay recognise an automatic termination of the contract thereby releasing theparties from their obligations. A lengthy inability to work due to illnessmight frustrate an employment contract, but courts and tribunals have beenreluctant to line up behind the doctrine of frustration. An employee had a rolling employment contract that included provision forsick pay, retirement, ordinary notice of termination and an ill-healthprocedure. She went on sick leave and was paid for seven months, after whichher employer was advised she was unfit to return to work. Nothing was done, anda few months later the employee started a full-time college course. When herabsence reached 16 months the employer decided enough was enough and wrote tothe employee to say her contract had ended by frustration. She countered with aclaim of unfair dismissal and breach of contract. The claim failed, but therewas an appeal in which the EAT looked at the principles of frustration. In her appeal, the employee argued that the contract envisaged long-termillness through the provisions of sick pay and an ill-health terminationprocedure. In this way, she claimed, her absence was foreseeable and could not,therefore, be capable of frustrating the contract. She also pointed to theopen-ended nature of the contract and her seven years’ service. On the otherhand, the frustration indicators were that she had enrolled for full-timestudy, had not been paid for nine months, was not a key employee, had beenunable to work for 16 months with the prognosis poor. The EAT dismissed the appeal, but in so doing differentiated between whetherthe facts were capable of establishing frustration (a question of law) andwhether those facts really did frustrate the contract (a question of fact). Itcould not, of course, reconsider the facts and found the tribunal was entitledto conclude that the contract had been frustrated. The EAT was unwilling toenunciate new principles for applying frustration to employment contracts andindicated that no individual factor was determinative. Although the employee failed in this case, it seems that frustration isstill an uncertain course for employers. Devising and applying sensitivesickness and capability procedures seems to offer the safest way out of atricky situation. Disability Discrimination Cosgrove v Caeser and Howie(2001) IRLR 653 Cosgrove was employed as a secretary. She became dep-ressed and, after shehad been absent for 12 months, she was dismissed. Cosgrove presented claims fordeclarations of unfair dismissal and disability discrimination. The tribunal found no evidence that Cosgrove had been treated anydifferently from the way her employer would have treated anyone else who hadbeen absent for a year. It also noted that neither Cosgrove nor her doctorcould suggest any reasonable changes to her work arrangements. Thediscrimination claim was dismissed. Cosgrove appealed. The EAT decided the tribunal’s approach was incorrect.The EAT asked as to the material reason for Cosgrove’s dismissal and found itwas her absence and uncertainty as to whether she would return. It then askedwhether the reason for her dismissal related to disability and found that itdid. Lastly, the EAT asked if the employer would have dismissed anotheremployee to whom the material reason did not apply. The EAT was unhappy with the tribunal’s choice of comparator because itcompared Cosgrove’s absence with another’s absence which might be for differentreasons or for no good reason at all. It said the proper comparison was with anemployee who had not been absent and decided there would not have been a reasonto dismiss such a comparator unless other potentially fair grounds fordismissal existed. Cosgrove had been treated less favourably than someone towhom the material reason did not apply. The EAT then looked at whether the apparent discrimination was justified andsaid that it cannot be justified where there is a duty under section 6 of theDisability Discrimination Act to make reasonable adjustments to workingarrangements. There was such a duty in this case and the EAT emphasised thatthe duty lies with the employer. Employers will not discharge their obligationsif they simply pass the buck to the employee or the employee’s doctor.Cosgrove’s employer did not believe she was disabled so did not consideradjustments. The EAT found there was discrimination and remitted the case for a remedieshearing. Disciplinary Procedures Injunctions may restrain a breach of a disciplinary procedure. Barros D’sa v University Hospital Coventry and Warwickshire NHS Trust (2001)IRLR 691 A consultant surgeon was suspended pending investigation of allegations ofprofessional misconduct. He had a contractual disciplinary procedure, whichrequired his employer to commission an investigation and report prior to asanctions hearing before the CEO. The inquiry found the allegations proved, butrecommended a first written warning. In its preparation for the sanctions hearing, the employer indicated therewas an irretrievable breakdown in trust and confidence caused by a letter sentby the consultant to his MP about his employer and some of his colleagues. Thishad not been before the inquiry panel. The consultant saw this as an indicationthat the CEO would be likely to dismiss him and he applied for an injunction tostop the use of the new allegation. An injunction was granted because theintroduction of this new issue was outside the disciplinary procedure andcontrary to natural justice. The employer appealed. The Court of Appeal said it must be an intrinsic partof the fairness of the procedure that issues considered at the sanctionshearing be limited to those in which the inquiry made findings. It was unfairand a breach of the contractual procedure for the employer to try to prove amore serious case, as it put the consultant at risk of being disciplined for anoffence that had not been tested or substantiated. The appeal was dismissed.