P had medical advice that he was unlikely ever to be able to work again. D gave him notice, but refused to give him sick pay on the grounds that the contract had been frustrated by P’s heart attack (that prevented him from working) so that it didn’t really have to give notice at all, let alone statutory sick pay. CA agreed that the contract was frustrated.
Dillon LJ: Under ERA there is an obligation to pay sick pay to an employee who is under notice, but if the contract was frustrated before this point then clearly there is no claim. He says that frustration does apply to employment contracts, even though this allows the ERA to be avoided. Using Lord Radcliffe’s definition from Davis Contractors he says that the inability of the employee perform work due to illness would render the mutual obligations radically different from those bargained for.