Warner v Armfield Retail & Leisure Ltd UKEAT/0376/12/SM
Subjects: Disability Related Discrimination – Failure to make reasonable adjustments
R is a small business specialising in refurbishing retail outlets and public houses. C was a site manager. The job required a high level of mobility and would have to carry out carpentry work when required. He suffered a severe stroke in Feb 2010 and it was accepted that he was disabled under EA 2010 from this point onwards. In June 2010 he was still unable or virtually unable to walk and still struggled with his concentration. On 27 Jan 2011, R sent him a P45 with a letter confirming his employment was at an end. R argued that the contract of employment was frustrated for the purposes of the unfair dismissal / breach of contract claims but accepted C was dismissed for the purpose of his claims of disability discrimination, albeit denied that it had discriminated, which the tribunal at first instance accepted.
The EAT (Richardson J presiding) determined that the doctrine of frustration did apply to contracts of employment even where those were terminable on short notice. However, although as a matter of practical reality there are issues of disability, sickness and absence for other reasons, it would be bad practice to do what R did in this case and simply send the P45 without enquiry.
In the case of a disabled person, before the doctrine of frustration can apply, there is an additional factor which is whether the employer is in breach of a duty to make reasonable adjustments. While there is something which it is reasonable to expect the employer to do in order to keep the employee in employment the doctrine of frustration can have no application [para 46].
Furthermore, the tribunal at first instance had not made findings on whether the R treated C unfavourably by failing to carry out any form of capability procedure and by dismissing him without any form of enquiry or procedure. There had been no findings and it was arguable that there was unfavourable treatment as a result of something arising in consequence of C’s disability which would need to be justified and it was questionable whether R’s conduct could be seen as a proportionate means of achieving a legitimate aim. The matter was remitted to the same tribunal to consider.
In a case where an unusual argument was run on behalf of the respondent company that the contractual doctrine of frustration would oust the disability discrimination claim, the EAT came to the commonsense conclusion that if the employer was under a duty to make reasonable adjustments he could not then escape that duty by deeming the disability to have frustrated the contract.