Is it appropriate for an employer to argue frustration of contract, for example if an employee is given a prison sentence of 3 or more years for an offence that is no way connected with their employment, can an employer claim frustration rather than have to go through the statutory dismissal procedure using "some other substantial reason" as the potential reason for dismissal?

Posted in : First Tuesday Q&A ROI on 1 October 2013
Zelda Cunningham
Arthur Cox
Issues covered:

Yes. The doctrine of frustration can apply to a contract of employment. A contract of employment shall be deemed to be frustrated where it has become, without default of either party, incapable of being performed.

Although arguably self-induced, the imprisonment of an employee could amount to frustration of a contract of employment as the employee would not be able to carry out his obligations while in prison, as held in Hare v, Murphy Bros [1974] ICR 603. In Gallagher -v- Eircom (UD955/2004), the Employment Appeals Tribunal (EAT) also held that the imprisonment of an employee was sufficient to amount to frustration of contract.

However, as with every dismissal, the employer must be in a

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Back to Q&A's This article is correct at 02/09/2015

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Zelda Cunningham
Arthur Cox

The main content of this article was provided by Zelda Cunningham. Contact telephone number is +353 1 618 0000 or email

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