Invalid fairly sacked
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In an unusual claim for unfair dismissal heard in Edinburgh recently the Scottish Industrial Tribunal found in favour of an employer who claimed the contract had been ended by frustration.
David Forsyth, a driver with Smith of Maddiston since 1964, suffered a kidney illness in February 1979 and was seen as a permanent invalid. He kept in contact with the firm, and was on good terms. At the end of 1981 Mr Forsyth had a successful kidney transplant and became well enough to go back to the firm to ask for work, not having had employment over the fiscal year 1980/81.
The firm, however, took the view that after this break he was no longer an employee, and in the altered work position another man would have to be dismissed if he were taken back.
He was offered work in the firm's Glasgow base but this he refused.
In rejecting the claim of unfair dismissal the Industrial Tribunal noted that he had been employed for 11 years and would probably still be employed but for his kidney complaint.
He had been regarded as a permanent invalid and when redundancies had to be declared there was an embargo on taking on new employees.
As there was no more room on the establishment, another employee would have to be made redundant to make room for him. That could led to redundancy payment to that employee end give rise to an unfair dismissal complaint.
The tribunal said it was rare to find employment terminated by frustration and they had considerable sympathy with the applicant in this unusual case, but it would be wrong to allow sympathy to outweigh the realities of the situation, and the complaint must be refused.