Frustration of Contract

[unbelievably angelic]

I would be grateful to hear if anybody has experience or knowledge of frustration of contract. I have been off sick from work for approx 11 months, and I have been referred to occupational health for the second time. My personnel contact kept talking about capability, and that it wouldn't be fair if she didn't mention this, blah,blah,blah. So I've kind of come to my own conclusion that this is what they're angling for. I found it hard to believe that I could be dismissed with no recompense. I am off sick with work-related stress, depression and anxiety. My grievance procedure came to nothing, but I know my ill health has been caused solely by the stress I was under at work. I'm too tired to begin contemplating an unfair dismissal claim, never mind even seeking advice from anywhere about whether this would be justified or not.

Also, if I stake my claim to my backdated holiday pay, would they be able to reclaim an overpayment of wages from about 6 months ago from it?

Any advice or thoughts would be extremely welcome.

[honeybee13]

Hello there. I really feel for you and the frustration they're causing you. I went through something similar myself and couldn't have faced any sort of ET, although a lawyer friend thought I had a strong case.

 

I don't really know what to suggest at the moment, sorry, but I'll have a think about it and hope that other caggers will be along soon.

 

Are they paying you and do they have any insurance that pays employees who are off sick? I just wonder if they're considering ill-health retirement or something along those lines.

 

HB x

[papasmurf1cx]

Hi Angelic........... Frustration of contract is different from what you have described. Frustration is something like a lorry drives into a building causing the building to collapse. A contract to service the toilets and provide loo paper cannot be done because the toilets are no longer there!!! or something similar. No fault of the people a party to the original contract.

 

You are describing a workplace problem that has made to sick and you are facing losing your job because of it. Would you like to tell us the story from the beginning? Start by telling us what kind of organisation you work for, what your job is and what happened to get you to where you are now. Include what happened at the grievance and how far you went with it eg to an appeal?

 

Just to let you know that being sick with what you describe would legally categorise you as 'disabled' this does not mean you cannot get better, it is just a legal position and your company may have to make special adjustments to you in addition to the normal redundancy things.

 

When you finish your story why don't you also give us an idea of what you want to achieve?

[honeybee13]

Unbelievably Angelic, I think you have posted before, haven't you? If your other thread have the information, you could provide us with a link. It could have been when papasmurf was on his 'gap year' from the forum .

 

My best, HB

[unbelievably angelic]

Thanks, you two.

Apparently I can't post links to my previous threads because my post count in the forums is less than 20.

 

Got to the end of my tether with mistakes by my colleague and issues with health and safety on a big scale. I work for a chemical company. I loved my job, but hated the extra pressure and worries caused by my colleague.Got offered a backroom, less stressful job that I didn't want. Went back for 3 days knowing that my new line manager was a bitch from hell. Lasted 2 and a half days.

Brought grievance, went through 2 appeals. All failed, despite acknowledgement from them that there were probs on site. I emailed the regional director with details of law-breaking on site, was told I should be focussing on looking forward, and not thinking about things that had gone on in the past. The exact same team is still in place on site, but I have been informed that things have changed.

 

I don't believe that things have changed at all. When I enquired about these changes the things that got mentioned were what I had already put in place before I went off sick!

The annoying thing is knowing that someone somewhere along the line has been lying, or at best just sweeping things under the carpet, but there's no way of me proving it.

I was prescribed anti-depressants in June 2009 for work problems, signed off sick with work-related stress and anxiety for almost a year now.

Perversely, I don't think I ever want to go back to this job. I would love for there to be some kind of recognition of how bad the situation was, and an acknowledgement of how hard I worked for the blasted company. Or an apology might be nice. I know this isn't going to happen. I'm already starting to think about what I'm writing in my farewell letter. But then I think I might just end up sounding bitter.

I have the HSE programmed onto speed dial for the day I leave the company, though.

[papasmurf1cx]

What is your goals, what is it you want?

[honeybee13]

I agree with you about the HSE, was thinking that as I read your post. Employees are protected under whistleblowing regulations, I think it is, if they report anything to the HSE. Maybe you could check that out and possibly speak to them on the helpline.

 

Are you saying that you don't want any financial settlement and would be prepared to just walk away? If you don't mind my asking, what would you live on?

 

I'm sure there are several options for you, please keep posting.

 

HB

[unbelievably angelic]

To be honest, I don't really know what my goals are now, after all this time.

Honeybee, I am currently claiming benefit as my sick pay stopped months ago, and looking for another job. I have problems in interviews explaining my situation, as I have to tell people I am still employed and officially need to give a month's notice.

I would obviously love for them to come up with some kind of financial settlement, but I don't think that will happen as they are still denying there has been any wrong-doing on their part to cause my illness. It's frustrating because my GP is still writing work-related stress on my sick notes, so it feels as though they are disagreeing with my doctor. Throughout the whole thing Personnel and my manager have not been the slightest bit interested in my illness, and have just been trying to deny it exists, in a way.

The first time I was referred to the OHS they didn't offer to show me a copy of the report, which I have still not seen nine months on. When I brought this up at the last meeting I had, the Personnel lady replied with 'Well, honey, you did keep going off sick so it was chaotic and we didn't get the chance.' Should I insist upon seeing it, do you think?

[honeybee13]

Hi there. I can't quote you any law, but I would say you should be able to see what's been written about you. I also think you should look around for a no win no fee lawyer who will give you a free initial meeting, normally 30 minutes to an hour to see if you have any mileage in claiming for Personal Injury by your employer. It may come to nothing, but there are other threads on this forum where people are claiming for similar things.

 

I think they've probably treated you badly. I don't have too much time for research and consideration right now, but I hope others will comment. Please stand up for yourself if you can, I know it's tough.

 

HB x

[papasmurf1cx]

Angelic.... you have a right to see anuthing that is written about you. My wife had a similar issue with OH and wrote to them and insisted that all letters, reports, files, computer documents and notes were released before any meeting with them took place. It took 6 months to get to the first OH meeting because they were unwilling to comply fully. Note the word fully. The Data Protection Laws are relevant and if you write a letter asking to see them in compliance with the DPA then they have 20 working days to comply (unless that number has changed!!).

[colin813]

You may or may not be covered by the dda only a tribunal can decide. however the laws are changing and the equality act 2010 comes into force in October, However not all the changes in the equality act will start at the same time. if you think you may be covered by the new law, you`ll need to get advice about whether it has come in to force yet.

 

For Example you suffer from depression, so its very difficult for you to make decisions. you`re forgetfull and you cant plan ahead. together these factors make it difficult for you to carry out day to day activities. you`ve had several linked periods of depression in the last two years and the effect of the depression are long term. For the purposes of the equality act you`re defined as a "disabled person" before the equality act, you may not have been able to get disability discrimination protection.

 

If you are looking for a financial gain you should ask your employer to make a reasonable adjustment under the dda to enable you to return to work. if they refuse, lodge a grievance and seek legal advice on constructive dismissal.

 

saying this if you`re not happy in work then maybe you should just resign and focus on the future, leave the past where its is... in the past!!

 

Good luck with what ever you decide

[unbelievably angelic]

Apologies for bumping this up out of the ether.

I was referred back to my OHS, and had to go and see a doctor last week that was employed by a company who was contracted by my company's OHS to assess me. I had been told by my lovely Personnel lady at work that they would be assessing my capability.

The doctor I saw was obviously a psychologist/psychiatrist. And he understood. The most important thing he said to me was to give up torturing myself about 'why'. Why had they treated me like this. He said I would never find out the answer. He told me I wasn't a bad person and it was because I was so conscientious that I had become so stressed.

He even gave me tips on what to say about my situation in job interviews.

He's recommending that if the company genuinely take this seriously then we should meet up somewhere neutral for them to let me know what they are going to do to help me back into work.

I'm not counting my chickens as I haven't seen his written report yet, but it's comforting to know that there are people on your side, people who hear about these problems every day in the course of their work, and just may be wanting to help.

[honeybee13]

Hello again. That sounds hopeful, I'm pleased for you and that you're feeling better about it.

 

HB x

[Ell-enn]

In relation to employment - in certain rate circumstances, an employment contract can be terminated by the legal principle known as "frustration". A contract is frustrated if something occurs that means that the contract can no longer be performed, or it can only be performed in a way that is radically different from what was originally envisaged. The most common example of this is where an employee is imprisoned for a criminal offence or becomes seriously ill.

The contract is unlikely to be frustrated by something that has been catered for in the contract's terms i.e. long term incapacity is unlikely to frustrate an employment contract that provides for long term incapacity benefits, unless it is clear that the illness will outlast the period for which the benefits are payable. If the employee's contract is terminated through frustration then there is no dismissal that can be challenged as unfair or wrongful, therefore employment tribunals are reluctant to accept the argument that the employee's contract has been frustrated because it effectively deprives the employee of the right to claim unfair dismissal.

 

You would really need to get an employment lawyer's opinion on your situation to establish if indeed frustration of contract applies.

Hope this helps.

[papasmurf1cx]

That is good news, but I agree don't count your chickens. The report is likely to read at best 'either way'. As I suppose you suspect people don't bite the hand that feeds them.

 

Keep us posted. How are you bearing up?

[unbelievably angelic]

Thanks everyone for your help. I'm so overwhelmed when I come on here to see how many people are struggling and suffering at the hands of their employers.

 

I've had my copy of my OHS report that is being sent to my employer this week. I am on tenterhooks, but feel a hell of a lot better for reading it.

They have deemed my situation as DDA qualifying if brought to a tribunal, which I found heartening. They say the stumbling block now is managerial and they should arrange a meeting with me to discuss what changes need to happen. My problem now is coming up with 'reasonable' requests for changes to my working environment. Asking them to sack the lazy irresponsible ****** won't go down too well I imagine.

Would anyone recommend consulting a solicitor before I confirm any meeting with my manager?

Thanks again.