Yes, providing the duty to make reasonable adjustments has not been breached, says the EAT in Warner v Armfield Retail and Leisure Limited.
Until his stroke in February 2010, the Appellant had been a site manager for the Respondent company, a small business specialising in shop and pub refurbishments. His day to day duties required considerable levels of mobility and some carpentry work.
The employment tribunal had dismissed the claims of unfair dismissal and disability discrimination and accepted the Respondent's argument that, for the purposes of unfair dismissal and breach of contract, the Claimant's contract had been frustrated.
On appeal, the Appellant submitted that there was no room for the doctrine of frustration once the duty to make reasonable adjustments had arisen. The EAT disagreed. Citing the Court of Appeal decision in Notcutt v Universal Equipment Co (London) Limited, it confirmed that the doctrine of frustration did apply to contracts of employment, albeit that there was an additional requirement to first consider whether the employer was in breach of its duty to make reasonable adjustments.
This case highlights the tension between the doctrine of frustration and the modern statutory protection afforded to disabled employees in the workplace.