United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Thomas Linden (of Counsel) instructed by Messrs Pattison & Brewer Solicitors 30 Great James Street London WC1N 3HA


 


JUDGE COLLINS:

1. This is a preliminary hearing of an appeal from the decision of a chairman sitting alone at Leeds. His extended reasons were promulgated on 29 September 1999. The proceedings were between the appellant and the Department of Trade and Industry who had taken the point that the appellant was not entitled to a redundancy payment because his contract of employment had been frustrated as a result of his long term illness. The chairman noted the 11 factors to be considered, which he derived from the two cases he mentioned in paragraph 9 of his reasons. He examined each of those 11 factors in turn and concluded that there was an overwhelming preponderance of factors in favour of frustration, although he was at pains to point out that he did not reach that conclusion simply by counting the factors for and against.
2. Mr Linden who appears for the appellant today has very properly drawn our attention to the decision of this tribunal in GF Sharp & Co Ltd v McMillan [1998] IRLR 632 where Lord Johnston discusses the relationship of the common law of frustration with the statutory law of employment and came to the conclusion in the case before this tribunal that the contract in that case having been frustrated, it could not be kept alive by the wishes of the parties.
3. There is a factual difference of some importance between this case and GF Sharp & Co Ltd v McMillan. In GF Sharp & Co Ltd v McMillan the employee had sustained an injury to his hand which meant that it was clear to all parties that he would never be able to return to his employment. In the instant case the appellant took the view that he was fit to return to work early in 1999. The employer ceased trading on 9 February 1999 and it was the appellant's case that he only failed to return to work in early 1999 because he thought there was no point in coming back just for a few weeks. In those circumstances it seems to us that bearing in mind it is clear from the evidence that both parties including the employer thought that the contract was still subsisting, the question of whether it was frustrated or not is one which is reasonably arguable. We direct that the case proceeds to a full hearing.