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Frustration of Employment Contract – Fitness to Return to Work

The recent case of An Employee v An Employer UD 1985/2011 revisits the issue of frustration of an employment contract.Although a short decision, it emphasizes the importance of an employee engaging with their employer with a view to returning to the workplace after illness.BackgroundThe claimant in this case was employed by the respondent construction company from 2000 and was absent from work on sick leave from June 2008. The claimant submitted regular medical certificates relating to his absence. A medical report of June 2008 from the company doctor set out the claimant’s medical problems.The respondent stated that the claimant refused to avail of operative intervention to improve his medical problems in 2008 however it appeared that the claimant did avail of that operative intervention in 2009. In correspondence dated 16th November 2010, it was determined that the claimant was capable of working and in January 2011 the company doctor certified that the claimant was fit to return to work. It was subsequently determined that the claimant needed to be assessed by an occupational therapist as the respondent wished to ensure that the claimant was physically fit to carry out his duties for insurance purposes.The claimant refused to attend the occupational therapist and the respondent wrote to him on 15th February 2011 stating“you must also demonstrate that there is no medical impediment to the resumption of your former employment. This will requireconfirmation from our delegated occupational therapist or a specialist of your choosing…”.The claimant’s contract of employment also provided that “the company reserves the right to have you examined by a medical practitioner at any time”.Ultimately the claimant did not attend with an occupational therapist or any specialist of his own choosing and he did not produce any independent medical evidence as to his fitness to return to his specific employment.The Tribunal ultimately found that the claimant, by refusing/neglecting to produce specialist evidence or to allow specialist evidence to be produced frustrated his contract of employment. Not surprisingly the claimant’s claim under the Unfair Dismissals Acts 1977 to 2007 and the Redundancy Payments Acts 1967 to 2007 failed.

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