Employment Rights Act 1996

Chapter I E+W+S Right not to be unfairly dismissed

Modifications etc. (not altering text)

C1 Pt. 10 modified (5.12.2022) by The Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022 (S.I. 2022/1145), regs. 1(2), 7(1)

The right E+W+S

94 The right. E+W+S

(1) An employee has the right not to be unfairly dismissed by his employer.

(2) Subsection (1) has effect subject to the following provisions of this Part (in particular sections 108 to 110) and to the provisions of the M1 Trade Union and Labour Relations (Consolidation) Act 1992 (in particular sections 237 to 239).

Marginal Citations

M1 1992 c. 52.

Dismissal E+W+S

95 Circumstances in which an employee is dismissed. E+W+S

(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) F1 . . . , only if)—

(a) the contract under which he is employed is terminated by the employer (whether with or without notice),

[F2 (b) he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or]

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

(2) An employee shall be taken to be dismissed by his employer for the purposes of this Part if—

(a) the employer gives notice to the employee to terminate his contract of employment, and

(b) at a time within the period of that notice the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer’s notice is due to expire;

and the reason for the dismissal is to be taken to be the reason for which the employer’s notice is given.

Textual Amendments

F1 Words in s. 95(1) repealed (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 57(1)(2), 59(2)-(4), Sch. 1 para. 29, Sch. 2; S.I. 2005/872, arts. 4, 5, Sch. (subject to arts. 6-12)

F2 S. 95(1)(b) substituted (1.10.2002) by virtue of The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (S.I. 2002/2034), reg. 11, Sch. 2 Pt. 1 para. 3(7) (with regs. 13-20 and subject to transitional provisions in Sch. 2 Pt. 2)

Modifications etc. (not altering text)

C2 S. 95(1)(c) restricted (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 10(3)(b)

F3 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F3 S. 96 repealed (15.12.1999) by 1999 c. 26, ss. 9, 44, Sch. 4 Pt. III para. 13, Sch. 9(2); S.I. 1999/2830, art. 2(2)(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11)

97 Effective date of termination. E+W+S

(1) Subject to the following provisions of this section, in this Part “the effective date of termination”—

(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires,

(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect, and

[F4 (c) in relation to an employee who is employed under a limited-term contract which terminates by virtue of the limiting event without being renewed under the same contract, means the date on which the termination takes effect.]

(2) Where—

(a) the contract of employment is terminated by the employer, and

(b) the notice required by section 86 to be given by an employer would, if duly given on the material date, expire on a date later than the effective date of termination (as defined by subsection (1)),

for the purposes of sections 108(1), 119(1) and 227(3) the later date is the effective date of termination.

(3) In subsection (2)(b) “the material date” means—

(a) the date when notice of termination was given by the employer, or

(b) where no notice was given, the date when the contract of employment was terminated by the employer.

(4) Where—

(a) the contract of employment is terminated by the employee,

(b) the material date does not fall during a period of notice given by the employer to terminate that contract, and

(c) had the contract been terminated not by the employee but by notice given on the material date by the employer, that notice would have been required by section 86 to expire on a date later than the effective date of termination (as defined by subsection (1)),

for the purposes of sections 108(1), 119(1) and 227(3) the later date is the effective date of termination.

(5) In subsection (4) “the material date” means—

(a) the date when notice of termination was given by the employee, or

(b) where no notice was given, the date when the contract of employment was terminated by the employee.

F5 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F4 S. 97(1)(c) substituted (1.10.2002) by The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (S.I. 2002/2034), reg. 11, Sch. 2 Pt. 1 para. 3(8) (with regs. 13-20 and subject to transitional provisions in Sch. 2 Pt. 2)

F5 S. 97(6) repealed (15.12.1999) by 1999 c. 26, ss. 9, 44, Sch. 4 Pt. III para. 14, Sch. 9(2); S.I. 1999/2830, art. 2(2)(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11)

Fairness E+W+S

98 General. E+W+S

(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it—

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) relates to the conduct of the employee,

[F6 (ba) F7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(c) is that the employee was redundant, or

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

[F8 (2A) F7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(3) In subsection (2)(a)—

(a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and

(b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.

[F9 (3A) F7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(4) [F10 Where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

F11 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) [F12 Subsection (4)][F13 is] subject to—

(a) sections [F14 98A] to 107 of this Act, and

(b) sections 152, 153 [F15 , 238 and 238A] of the M2 Trade Union and Labour Relations (Consolidation) Act 1992 (dismissal on ground of trade union membership or activities or in connection with industrial action).

Textual Amendments

F6 S. 98(2)(ba) inserted (1.10.2006) by The Employment Equality (Age) Regulations 2006 (S.I. 2006/1031), regs. 1(1), 49(1), Sch. 8 para. 22(2) (with regs. 44-46)

F7 S. 98(2)(ba)(2A)(3A) omitted (6.4.2011) by virtue of The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (S.I. 2011/1069), reg. 3(2)(a) (with regs. 5, 6, 9)

F8 S. 98(2A) inserted (1.10.2006) by The Employment Equality (Age) Regulations 2006 (S.I. 2006/1031), regs. 1(1), 49(1), Sch. 8 para. 22(3) (with regs. 44-46)

F9 S. 98(3A) inserted (1.10.2006) by The Employment Equality (Age) Regulations 2006 (S.I. 2006/1031), regs. 1(1), 49(1), Sch. 8 para. 22(4) (with regs. 44-46)

F10 Word in s. 98(4) substituted (6.4.2011) by The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (S.I. 2011/1069), reg. 3(2)(b) (with regs. 5, 6, 9)

F11 S. 98(5) repealed (15.12.1999) by 1999 c. 26, ss. 9, 44, Sch. 4 Pt. III para. 15(a), Sch. 9(2); S.I. 1999/2830, art. 2(2)(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11)

F12 Words in s. 98(6) substituted (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 15(b); S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 paras. 10, 11)

F13 Word in s. 98(6) substituted (1.10.2004) by Employment Act 2002 (c. 22), ss. 53, 55(2), Sch. 7 para. 32(a); S.I. 2004/2185, art. 2

F14 Word in s. 98(6)(a) substituted (1.10.2004) by Employment Act 2002 (c. 22), ss. 53, 55(2), Sch. 7 para. 32(b); S.I. 2004/2185, art. 2

F15 Words in s. 98(6)(b) substituted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 57(1), 59(2)-(4), Sch. 1 para. 30; S.I. 2005/872, arts. 4, 5, Sch. (subject to arts. 6-12)

Modifications etc. (not altering text)

C3 S. 98(1) modified (1.1.1999) by 1998 Measure No. 1, s. 6(1), Sch. 3 para. 3(2)(b); Instrument dated 14.10.1998 made by the Archbishops of Canterbury and York

C4 S. 98(1) modified by SI 2006/246 reg. 7(3)(b) (as substituted (31.1.2014) by The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (S.I. 2014/16), regs. 1(2), 8(1) (with reg. 8(2)))

Marginal Citations

M2 1992 c. 52.

[F16 Retirement E+W+S

Textual Amendments

F16 Ss. 98ZA-98ZH and cross-headings inserted (1.10.2006) by The Employment Equality (Age) Regulations 2006 (S.I. 2006/1031), reg. 49(1), Sch. 8 para. 23 (with regs. 44-46)

98ZA No normal retirement age: dismissal before 65 E+W+S

F17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F17 Ss. 98ZA-98ZH omitted (6.4.2011) by virtue of The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (S.I. 2011/1069), reg. 3(3) (with regs. 5, 6, 9)

98ZB No normal retirement age: dismissal at or after 65 E+W+S

F18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F18 Ss. 98ZA-98ZH omitted (6.4.2011) by virtue of The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (S.I. 2011/1069), reg. 3(3) (with regs. 5, 6, 9)

98ZC Normal retirement age: dismissal before retirement age E+W+S

F19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F19 Ss. 98ZA-98ZH omitted (6.4.2011) by virtue of The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (S.I. 2011/1069), reg. 3(3) (with regs. 5, 6, 9)

98ZD Normal retirement age 65 or higher: dismissal at or after retirement age E+W+S

F20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F20 Ss. 98ZA-98ZH omitted (6.4.2011) by virtue of The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (S.I. 2011/1069), reg. 3(3) (with regs. 5, 6, 9)

98ZE Normal retirement age below 65: dismissal at or after retirement age E+W+S

F21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F21 Ss. 98ZA-98ZH omitted (6.4.2011) by virtue of The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (S.I. 2011/1069), reg. 3(3) (with regs. 5, 6, 9)

98ZF Reason for dismissal: particular matters E+W+S

F22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F22 Ss. 98ZA-98ZH omitted (6.4.2011) by virtue of The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (S.I. 2011/1069), reg. 3(3) (with regs. 5, 6, 9)

98ZG Retirement dismissals: fairness E+W+S

F23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F23 Ss. 98ZA-98ZH omitted (6.4.2011) by virtue of The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (S.I. 2011/1069), reg. 3(3) (with regs. 5, 6, 9)

98ZH Interpretation E+W+S

F24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ]

Textual Amendments

F24 Ss. 98ZA-98ZH omitted (6.4.2011) by virtue of The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (S.I. 2011/1069), reg. 3(3) (with regs. 5, 6, 9)

Other dismissals E+W+S

[F25 98A Procedural fairness E+W+S

F26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F25 S. 98A inserted (1.10.2004) by Employment Act 2002 (c. 22), ss. 34(2), 55(2); S.I. 2004/1717, art. 2(2) (subject to art. 3)

F26 S. 98A repealed (6.4.2009) by Employment Act 2008 (c. 24), ss. 2, 20, 22(1)(a), Sch. Pt. 1; S.I. 2008/3232, art. 2 (with Sch. paras. 1, 5)

[F27 98B Jury service E+W+S

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—

(a) has been summoned under the Juries Act 1974, [F28 Part 1 of the Coroners and Justice Act 2009], the Court of Session Act 1988 or the Criminal Procedure (Scotland) Act 1995 to attend for service as a juror, or

(b) has been absent from work because he attended at any place in pursuance of being so summoned.

(2) Subsection (1) does not apply in relation to an employee who is dismissed if the employer shows—

(a) that the circumstances were such that the employee’s absence in pursuance of being so summoned was likely to cause substantial injury to the employer’s undertaking,

(b) that the employer brought those circumstances to the attention of the employee,

(c) that the employee refused or failed to apply to the appropriate officer for excusal from or a deferral of the obligation to attend in pursuance of being so summoned, and

(d) that the refusal or failure was not reasonable.

(3) In paragraph (c) of subsection (2) “ the appropriate officer ” means—

(a) in the case of a person who has been summoned under the Juries Act 1974, the officer designated for the purposes of section 8, 9 or, as the case may be, 9A of that Act;

(b) in the case of a person who has been summoned under the Coroners Act 1988, a person who is the appropriate officer for the purposes of any rules made under subsection (1) of section 32 of that Act by virtue of subsection (2) of that section;

(c) in the case of a person who has been summoned under the Court of Session Act 1988, either—

(i) the clerk of court issuing the citation to attend for jury service; or

(ii) the clerk of the court before which the person is cited to attend for jury service;

(d) in the case of a person who has been summoned under the Criminal Procedure (Scotland) Act 1995, either—

(i) the clerk of court issuing the citation to attend for jury service; or

(ii) the clerk of the court before which the person has been cited to attend for jury service;

and references in that paragraph to a refusal or failure to apply include references to a refusal or failure to give a notice under section 1(2)(b) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980.]

Textual Amendments

F27 S. 98B inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 40(3), 59(2)-(4); S.I. 2005/872, arts. 4, 5, Sch. (subject to arts. 6-12)

F28 Words in s. 98B(1)(a) substituted (25.7.2013) by Coroners and Justice Act 2009 (c. 25), s. 182(4)(e), Sch. 21 para. 36(3) (with s. 180); S.I. 2013/1869, art. 2(o)(xv)

[F29 99 Leave for family reasons. E+W+S

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—

(a) the reason or principal reason for the dismissal is of a prescribed kind, or

(b) the dismissal takes place in prescribed circumstances.

(2) In this section “ prescribed ” means prescribed by regulations made by the Secretary of State.

(3) A reason or set of circumstances prescribed under this section must relate to—

(a) pregnancy, childbirth or maternity,

[F30 (aa) time off under section 57ZE,]

[F31 (ab) time off under section 57ZJ or 57ZL,]

(b) ordinary, compulsory or additional maternity leave,

[F32 (ba) ordinary or additional adoption leave,]

[F33 (bb) shared parental leave,]

(c) parental leave,

[F34 [F35 (ca) [F36 paternity leave],]]

[F37 (cb) parental bereavement leave,] or

(d) time off under section 57A;

and it may also relate to redundancy or other factors.

(4) A reason or set of circumstances prescribed under subsection (1) satisfies subsection (3)(c) or (d) if it relates to action which an employee—

(a) takes,

(b) agrees to take, or

(c) refuses to take,

under or in respect of a collective or workforce agreement which deals with parental leave.

(5) Regulations under this section may—

(a) make different provision for different cases or circumstances;

(b) apply any enactment, in such circumstances as may be specified and subject to any conditions specified, in relation to persons regarded as unfairly dismissed by reason of this section.]

Textual Amendments

F29 S. 99 substituted (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 16; S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 paras. 10, 11)

F30 S. 99(3)(aa) inserted (30.6.2014) by Children and Families Act 2014 (c. 6), ss. 127(2)(b), 139(6); S.I. 2014/1640, art. 3(1)(i)

F31 S. 99(3)(ab) inserted (30.6.2014) by Children and Families Act 2014 (c. 6), ss. 128(2)(c), 139(6); S.I. 2014/1640, art. 3(1)(j)

F32 S. 99(3)(ba) inserted (8.12.2002) by Employment Act 2002 (c. 22), s. 53, Sch. 7 para. 33(2); S.I. 2002/2866, art. 2(2), Sch. 1 Pt. 2

F33 S. 99(3)(bb) inserted (30.6.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 7 para. 39(a); S.I. 2014/1640, art. 3(2)(i)

F34 S. 99(3)(ca) substituted (8.12.2002) for the word "or" by Employment Act 2002 (c. 22), s. 53, Sch. 7 para. 33(3); S.I. 2002/2866, art. 2(2), Sch. 1 Pt. 2

F35 S. 99(3)(ca) substituted (3.3.2010) by Work and Families Act 2006 (c. 18), ss. 11, 19, Sch. 1 para. 41; S.I. 2010/495, art. 3(c)

F36 Words in s. 99(3)(ca) substituted (5.4.2015) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 7 para. 39(b); S.I. 2014/1640, art. 7(t) (with art. 16)

F37 S. 99(3)(cb) inserted (18.1.2020) by Parental Bereavement (Leave and Pay) Act 2018 (c. 24), s. 2(2), Sch. para. 27; S.I. 2020/45, reg. 2

100 Health and safety cases. E+W+S

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—

(a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,

(b) being a representative of workers on matters of health and safety at work or member of a safety committee—

(i) in accordance with arrangements established under or by virtue of any enactment, or

(ii) by reason of being acknowledged as such by the employer,

the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee,

(c) being an employee at a place where—

(i) there was no such representative or safety committee, or

(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

(2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

(3) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (1)(e), he shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have dismissed him for taking (or proposing to take) them.

101 Shop workers and betting workers who refuse Sunday work. E+W+S

(1) Where an employee who is—

(a) a protected shop worker or an opted-out shop worker, or

(b) a protected betting worker or an opted-out betting worker,

is dismissed, he shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that he refused (or proposed to refuse) to do shop work, or betting work, on Sunday or on a particular Sunday.

(2) Subsection (1) does not apply in relation to an opted-out shop worker or an opted-out betting worker where the reason (or principal reason) for the dismissal is that he refused (or proposed to refuse) to do shop work, or betting work, on any Sunday or Sundays falling before the end of the notice period.

(3) A shop worker or betting worker who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the shop worker or betting worker gave (or proposed to give) an opting-out notice to the employer.

(4) For the purposes of section 36(2)(b) or 41(1)(b), the appropriate date in relation to this section is the effective date of termination.

Extent Information

E1 S. 101, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

[F38 101ZA Shop workers who refuse to work additional hours on Sunday E+W+S

(1) Subsection (2) applies where a shop worker has given an objection notice that has not been withdrawn and he or she is dismissed.

(2) The shop worker is to be regarded for the purposes of this Part as unfairly dismissed if the reason (or the principal reason) for the dismissal is that he or she refused, or proposed to refuse, to do shop work for additional hours on Sunday or on a particular Sunday.

(3) Subsection (2) does not apply where the reason (or principal reason) for the dismissal is that the shop worker refused (or proposed to refuse) to do shop work for additional hours on any Sunday or Sundays falling before the end of the relevant period.

(4) A shop worker who is dismissed is to be regarded for the purposes of this Part as unfairly dismissed if the reason (or principal reason) for the dismissal is that the worker gave (or proposed to give) an objection notice to the employer.

(5) In this section—

• “additional hours” and “objection notice” have the meanings given by section 41A(2);

• “relevant period” means the period determined by section 43ZA(2) (but subject to section 41D(3)).]

Textual Amendments

F38 S. 101ZA inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 9

[F39 101A Working time cases. E+W+S

[F40 1] An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—

(a) refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the M3 Working Time Regulations 1998,

(b) refused (or proposed to refuse) to forgo a right conferred on him by those Regulations,

(c) failed to sign a workforce agreement for the purposes of those Regulations, or to enter into, or agree to vary or extend, any other agreement with his employer which is provided for in those Regulations, or

(d) being—

(i) a representative of members of the workforce for the purposes of Schedule 1 to those Regulations, or

(ii) a candidate in an election in which any person elected will, on being elected, be such a representative,

performed (or proposed to perform) any functions or activities as such a representative or candidate.

[F41 (2) A reference in this section to the Working Time Regulations 1998 includes a reference to

[F42 (a)] the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003.

[F43 (b) the Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004.]

[F44 (c) the Cross-border Railway Services (Working Time) Regulations 2008]

[F45 (d) the Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (S.I. 2018/58).]]]

Textual Amendments

F39 S. 101A inserted (1.10.1998) by S.I. 1998/1833, reg. 32(1)

F40 S. 101A renumbered as s. 101A(1) (24.12.2003) by The Merchant Shipping (Working Time: Inland Waterways) Regulations 2003 (S.I. 2003/3049), reg. 20, Sch. 2 para. 3(3)

F41 S. 101A(2) inserted (24.12.2003) by The Merchant Shipping (Working Time: Inland Waterways) Regulations 2003 (S.I. 2003/3049), reg. 20, Sch. 2 para. 3(3)

F42 Words in s. 101A(2) renumbered as s. 101A(2)(a) (16.8.2004) by The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 (S.I. 2004/1713), regs. 1, 22, Sch. 2 para. 2(3)(a)

F43 S. 101A(2)(b) inserted (16.8.2004) by The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 (S.I. 2004/1713), regs. 1, 22, Sch. 2 para. 2(3)(b)

F44 S. 101A(2)(c) inserted (27.7.2008) by The Cross-border Railway Services (Working Time) Regulations 2008 (S.I. 2008/1660), reg. 19, Sch. 3 para. 2(3)

F45 S. 101A(2)(d) substituted (6.4.2018) by The Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (S.I. 2018/58), reg. 1, Sch. 2 para. 2(b) (with regs. 3, 4)

Marginal Citations

M3 S.I. 1998/1833

102 Trustees of occupational pension schemes. E+W+S

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that, being a trustee of a relevant occupational pension scheme which relates to his employment, the employee performed (or proposed to perform) any functions as such a trustee.

[F46 (1A) This section applies to an employee who is a director of a company which is a trustee of a relevant occupational pension scheme as it applies to an employee who is a trustee of such a scheme (references to such a trustee being read for this purpose as references to such a director).]

(2) In this section “relevant occupational pension scheme” means an occupational pension scheme (as defined in section 1 of the M4 Pension Schemes Act 1993) established under a trust.

Textual Amendments

F46 S. 102(1A) inserted (11.11.1999 for specified purposes and otherwise 25.4.2000) by 1999 c. 30, ss. 18, 89(1)(5)(a), Sch. 2 para. 19(4); S.I. 2000/1047, art. 2(2), Sch. Pt. II

Modifications etc. (not altering text)

C5 S. 102 applied (11.11.1999 for specified purposes and otherwise 8.10.2001) by 1999 c. 30, s. 6(1), (with s. 8(6)); S.I. 2000/1047, art. 2(2), Sch. Pt. V

Commencement Information

I1 S. 102 wholly in force at 6.10.1996, see Sch. 2 para. 15(1) and S.I. 1996/2514, art. 2

Marginal Citations

M4 1993 c. 48.

103 Employee representatives. E+W+S

[F47 (1)] An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee, being—

(a) an employee representative for the purposes of Chapter II of Part IV of the M5 Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or [F48 regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006], or

(b) a candidate in an election in which any person elected will, on being elected, be such an employee representative,

performed (or proposed to perform) any functions or activities as such an employee representative or candidate.

[F49 (2) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee took part in an election of employee representatives for the purposes of Chapter II of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies) or [F50 regulations 9, 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 ] . ]

Textual Amendments

F47 S. 103 renumbered as s. 103(1) (28.7.1999) by S.I. 1999/1925, reg. 13

F48 Words in s. 103(1)(a) substituted (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 20, Sch. 2 para. 10(c) (with application as mentioned in reg. 21(1))

F49 S. 103(2) inserted (28.7.1999) by S.I. 1999/1925, reg. 13

F50 Words in s. 103(2) substituted (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 20, Sch. 2 para. 10(c) (with application as mentioned in reg. 21(1))

Marginal Citations

M5 1992 c. 52.

[F51 103A Protected disclosure. E+W+S

An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.]

Textual Amendments

F51 S. 103A inserted (2.7.1999) by 1998 c. 23, s. 5; S.I. 1999/1547, art. 2

104 Assertion of statutory right. E+W+S

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—

(a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or

(b) alleged that the employer had infringed a right of his which is a relevant statutory right.

(2) It is immaterial for the purposes of subsection (1)—

(a) whether or not the employee has the right, or

(b) whether or not the right has been infringed;

but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.

(3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.

(4) The following are relevant statutory rights for the purposes of this section—

(a) any right conferred by this Act for which the remedy for its infringement is by way of a complaint or reference to an [F52 employment tribunal],

(b) the right conferred by section 86 of this Act, F53 . . .

(c) the rights conferred by sections 68, 86, [F54 145A, 145B,] 146, 168, [F55 168A,] 169 and 170 of the Trade Union and Labour Relations (Consolidation) Act 1992 (deductions from pay, union activities and time off) F56 [F57 . . .

F58 [F59 (d) the rights conferred by the Working Time Regulations 1998, [F60 the Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (S.I. 2018/58)], the Merchant Shipping (Working Time: Inland Waterway) Regulations 2003 [F61 , the Fishing Vessels (Working Time: Sea-fisherman) Regulations 2004 or the Cross-border Railway Services (Working Time) Regulations 2008].]][F62 , and

(e) the rights conferred by the Transfer of Undertakings (Protection of Employment) Regulations 2006.]

[F63 (5) In this section any reference to an employer includes, where the right in question is conferred by section 63A, the principal (within the meaning of section 63A(3)).]

Textual Amendments

F52 Words in s. 104(4)(a) substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

F53 Word in s. 104(4)(b) omitted (1.10.1998) by virtue of S.I. 1998/1833, reg. 32(2)(a)

F54 Words in s. 104(4)(c) inserted (1.10.2004) by Employment Relations Act 2004 (c. 24), ss. 57(1), 59(2)-(4), Sch. 1 para. 31; S.I. 2004/2566, art. 3(b) (subject to arts. 5-8)

F55 Word in s. 104(4)(c) inserted (27.4.2003) by Employment Act 2002 (c. 22), ss. 53, 55(2), Sch. 7 para. 34; S.I. 2003/1190, art. 2(2)(c)

F56 Word in s. 104(4)(c) omitted (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by virtue of The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 19(a)

F57 S. 104(4)(d) and preceding word inserted (1.10.1998) by S.I. 1998/1833, reg. 32(2)(b)

F58 S. 104(4)(d) and preceding word inserted (1.10.1998) by S.I. 1998/1833, reg. 32(2)(b)

F59 S. 104(4)(d) substituted (16.8.2004) by The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 (S.I. 2004/1713), regs. 1, 22, Sch. 2 para. 2(4)

F60 Words in s. 104(4)(d) substituted (6.4.2018) by The Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (S.I. 2018/58), reg. 1, Sch. 2 para. 2(c) (with regs. 3, 4)

F61 Words in s. 104(4)(d) substituted (27.7.2008) by The Cross-border Railway Services (Working Time) Regulations 2008 (S.I. 2008/1660), reg. 19, Sch. 3 para. 2(4)

F62 S. 104(4)(e) and word inserted (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 19(b)

F63 S. 104(5) inserted (1.9.1999) by 1998 c. 30, s. 44(1), Sch. 3 para. 13 (with s. 42(8)); S.I. 1999/987, art. 2

[F64 104A The national minimum wage. E+W+S

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—

(a) any action was taken, or was proposed to be taken, by or on behalf of the employee with a view to enforcing, or otherwise securing the benefit of, a right of the employee’s to which this section applies; or

(b) the employer was prosecuted for an offence under section 31 of the National Minimum Wage Act 1998 as a result of action taken by or on behalf of the employee for the purpose of enforcing, or otherwise securing the benefit of, a right of the employee’s to which this section applies; or

( c ) the employee qualifies, or will or might qualify, for the national minimum wage or for a particular rate of national minimum wage.

(2) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above—

(a) whether or not the employee has the right, or

(b) whether or not the right has been infringed,

but, for that subsection to apply, the claim to the right and, if applicable, the claim that it has been infringed must be made in good faith.

(3) The following are the rights to which this section applies—

(a) any right conferred by, or by virtue of, any provision of the National Minimum Wage Act 1998 for which the remedy for its infringement is by way of a complaint to an employment tribunal; and

(b) any right conferred by section 17 of the National Minimum Wage Act 1998 (worker receiving less than national minimum wage entitled to additional remuneration).]

Textual Amendments

F64 S. 104A inserted (1.11.1998) by 1998 c. 39, s. 25(1); S.I. 1998/2574, art. 2(1), Sch. 1 (with art. 3)

Modifications etc. (not altering text)

C6 S. 104A modified (1.4.1999) by 1948 c. 47, s. 3A(5) (as inserted (1.4.1999) by 1998 c. 39, s. 47, Sch. 2 Pt. I para. 3; S.I. 1999/685, art. 2 Sch.)

S. 104A extended (1.4.1999) by 1949 c. 30, s. 3A(4) (as inserted (1.4.1999) by 1998 c. 39, s. 47, Sch. 2 Pt. II para. 13; S.I. 1999/685, art.2, Sch.)

C7 S. 104A(1)(c) modified (E.W.) (30.7.2014) by Agricultural Sector (Wales) Act 2014 (anaw 6), ss. 5(8), 19 (with s. 14(1))

[F65 104B Tax credits E+W+S

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—

(a) any action was taken, or was proposed to be taken, by or on behalf of the employee with a view to enforcing, or otherwise securing the benefit of, a right conferred on the employee by regulations under section 25 of the Tax Credits Act 2002,

(b) a penalty was imposed on the employer, or proceedings for a penalty were brought against him, under that Act, as a result of action taken by or on behalf of the employee for the purpose of enforcing, or otherwise securing the benefit of, such a right, or

(c) the employee is entitled, or will or may be entitled, to working tax credit.

(2) It is immaterial for the purposes of subsection (1)(a) or (b)—

(a) whether or not the employee has the right, or

(b) whether or not the right has been infringed,

but, for those provisions to apply, the claim to the right and (if applicable) the claim that it has been infringed must be made in good faith.]

Textual Amendments

F65 S. 104B substituted (1.9.2002 for certain purposes, otherwise prosp.) by Tax Credits Act 2002 (c. 21), s. 27, Sch. 1 para. 3(2); S.I. 2002/1727, art. 2

[F66 104C Flexible working E+W+S

An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—

(a) made (or proposed to make) an application under section 80F,

F67 ( b ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) brought proceedings against the employer under section 80H, or

(d) alleged the existence of any circumstance which would constitute a ground for bringing such proceedings.]

Textual Amendments

F66 S. 104C inserted (6.4.2003) by Employment Act 2002 (c. 22), s. 47(4); S.I. 2002/2866, art. 2(3), Sch. 1 Pt. 3

F67 S. 104C(1)(b) repealed (30.6.2014) by Children and Families Act 2014 (c. 6), ss. 132(5)(e), 139(6); S.I. 2014/1640, art. 3(1)(l) (with art. 10)

[F68 104D Pension enrolment E+W+S

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—

(a) any action was taken, or was proposed to be taken, with a view to enforcing in favour of the employee a requirement to which this section applies;

(b) the employer was prosecuted for an offence under section 45 of the Pensions Act 2008 as a result of action taken for the purpose of enforcing in favour of the employee a requirement to which this section applies; or

(c) any provision of Chapter 1 of that Part of that Act applies to the employee, or will or might apply.

(2) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above—

(a) whether or not the requirement applies in favour of the employee, or

(b) whether or not the requirement has been contravened,

but, for that subsection to apply, the claim that the requirement applies and, if applicable, the claim that it has been contravened must be made in good faith.

(3) This section applies to any requirement imposed on the employer by or under any provision of Chapter 1 of Part 1 of the Pensions Act 2008.

(4) In this section references to enforcing a requirement include references to securing its benefit in any way.]

Textual Amendments

F68 S. 105(7JA) inserted (30.6.2012) by Pensions Act 2008 (c. 30), ss. 57(4), 149(1); S.I. 2012/1682, art. 2, Sch. 2

[F69 104E Study and training E+W+S

An employee who is dismissed is to be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—

(a) made (or proposed to make) a section 63D application,

(b) exercised (or proposed to exercise) a right conferred on the employee under section 63F,

(c) brought proceedings against the employer under section 63I, or

(d) alleged the existence of any circumstance which would constitute a ground for bringing such proceedings.]

Textual Amendments

F69 S. 104E inserted (6.4.2010 for certain purposes and otherwise prosp.) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), ss. 40(4), 269(4); S.I. 2010/303, art. 4, Sch. 3 (with arts. 8-14) (as amended by S.I. 2010/1151, art. 22)

[F70 104F Blacklists E+W+S

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal relates to a prohibited list, and either—

(a) the employer contravenes regulation 3 of the 2010 Regulations in relation to that prohibited list, or

(b) the employer—

(i) relies on information supplied by a person who contravenes that regulation in relation to that list, and

(ii) knows or ought reasonably to know that the information relied on is supplied in contravention of that regulation.

(2) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that the employer—

(a) contravened regulation 3 of the 2010 Regulations, or

(b) relied on information supplied in contravention of that regulation,

the tribunal must find that such a contravention or reliance on information occurred, unless the employer shows that it did not.

(3) In this section—

• “ the 2010 Regulations ” means the Employment Relations Act 1999 (Blacklists) Regulations 2010, and

• “ prohibited list ” has the meaning given in those Regulations (see regulation 3(2)). ]

Textual Amendments

F70 S. 104F inserted (2.3.2010) by The Employment Relations Act 1999 (Blacklists) Regulations 2010 (S.I. 2010/493), reg. 12(2)

[F71 104G Employee shareholder status E+W+S

An employee who is dismissed is to be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee refused to accept an offer by the employer for the employee to become an employee shareholder (within the meaning of section 205A).]

Textual Amendments

F71 S. 104G inserted (1.9.2013) by Growth and Infrastructure Act 2013 (c. 27), ss. 31(4), 35(1); S.I. 2013/1766, art. 2

105 Redundancy. E+W+S

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—

(a) the reason (or, if more than one, the principal reason) for the dismissal is that the employee was redundant,

(b) it is shown that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by the employee and who have not been dismissed by the employer, and

F72 [F73 (c) it is shown that any of subsections [F74 (2A) to [F75 (7N)]] applies.]

F76 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F77 (2A) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 98B (unless the case is one to which subsection (2) of that section applies).]

(3) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 100 (read with subsections (2) and (3) of that section).

(4) This subsection applies if either—

(a) the employee was a protected shop worker or an opted-out shop worker, or a protected betting worker or an opted-out betting worker, and the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in subsection (1) of section 101 (read with subsection (2) of that section), or

(b) the employee was a shop worker or a betting worker and the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in subsection (3) of that section.

[F78 (4A) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in section 101A.]

(5) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in section 102(1).

(6) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in section 103.

[F79 (6A) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was that specified in section 103A.]

(7) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 104 (read with subsections (2) and (3) of that section).

[F80 (7A) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 104A (read with subsection (2) of that section).]

[F81 (7B) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 104B (read with subsection (2) of that section).]

[F82 (7BA) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in section 104C.]

[F83 (7BB) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in section 104E.]

[F84 (7C) This subsection applies if—

(a) the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the reason mentioned in section 238A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (participation in official industrial action), and

(b) subsection (3), (4) or (5) of that section applies to the dismissal.]

[F85 (7D) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) or (6) of regulation 28 of the Transnational Information and Consultation of Employees Regulations 1999 (read with paragraphs (4) and (7) of that regulation).]

[F86 (7E) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) of regulation 7 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (unless the case is one to which paragraph (4) of that regulation applies).]

[F87 (7F) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) of regulation 6 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (unless the case is one to which paragraph (4) of that regulation applies).]

[F88 (7G) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) or (6) of regulation 42 of the European Public Limited-Liability Company Regulations 2004 (read with paragraphs (4) and (7) of that regulation).]

[F89 (7H) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) or (6) of regulation 30 of the Information and Consultation of Employees Regulations 2004 (read with paragraphs (4) and (7) of that regulation).]

[F90 (7I) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph 5(3) or (5) of the Schedule to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 (read with paragraph 5(6) of that Schedule).]

[F91 (7IA) F92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ]

[F93 (7J) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) or (6) of regulation 31 of the European Cooperative Society (Involvement of Employees) Regulations 2006 (read with paragraphs (4) and (7) of that regulation).]

[F94 (7JA) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 104D (read with subsection (2) of that section).]

F95 (7K) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F96 (7L) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) or (6) of regulation 29 of the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009( S.I. 2009/2401) (read with paragraphs (4) and (7) of that regulation). ]

[F97 (7M) This subsection applies if—

(a) the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1), and

(b) the condition in paragraph (a) or (b) of that subsection was met.]

[F98 (7N) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in—

(a) paragraph (3) of regulation 17 of the Agency Workers Regulations 2010 (unless the case is one to which paragraph (4) of that regulation applies); or

(b) paragraph (3) of regulation 5 of the Agency Workers (Amendment) Regulations 2019 (unless the case is one to which paragraph (4) of that regulation applies).]

(8) For the purposes of section 36(2)(b) or 41(1)(b), the appropriate date in relation to this section is the effective date of termination.

(9) In this Part “redundancy case” means a case where paragraphs (a) and (b) of subsection (1) of this section are satisfied.

Textual Amendments

F72 By Pensions Act 2008 (c. 30), ss. 57(3), 149(1), it is provided (prosp.) that in s. 105(1)(c) for "(7J)" there be substituted "(7K)"

F73 S. 105(1)(c) substituted (18.8.2006) by The European Cooperative Society (Involvement of Employees) Regulations 2006 (S.I. 2006/2059), reg. 32(1)(a)

F74 Words in s. 105(1)(c) substituted (15.12.2007) by The Companies (Cross-Border Mergers) Regulations 2007 (S.I. 2007/2974), reg. 48(1)(a)

F75 Words in s. 105(1)(c) substituted (1.10.2011) by The Agency Workers Regulations 2010 (S.I. 2010/93), reg. 25, Sch. 2 para. 15

F76 S. 105(2) repealed (15.12.1999) by 1999 c. 26, ss. 9, 44, Sch. 4 Pt. III para. 17, Sch. 9(2); S.I. 1999/2830, art. 2(2)(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11)

F77 S. 105(2A) inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 40(5), 59(2)-(4); S.I. 2005/872, arts. 4, 5, Sch. (subject to arts. 6-12)

F78 S. 105(4A) inserted (1.10.1998) by S.I. 1998/1833, reg. 32(3)

F79 S. 105(6A) inserted (2.7.1999) by 1998 c. 23, s. 6; S.I. 1999/1547, art. 2

F80 S. 105(7A) inserted (1.11.1998) by 1998 c. 39, s. 25(2); S.I. 1998/2574, art. 2(1), Sch. 1 (with art. 3)

F81 S. 105(7B) inserted (5.10.1999) by 1999 c. 10, ss. 7, 20(2), Sch. 3 para. 3(2) (which amending Act was repealed (in part on 27.8.2002 and 4.12.2002, otherwise prosp.) by Tax Credits Act 2002 (c. 21), s. 60, Sch. 6; S.I. 2002/1727, art. 2) and insertion continued (1.9.2002 for certain purposes, otherwise prosp.) by Tax Credits Act 2002 (c. 21), s. 27, Sch. 1 para. 3(3); S.I. 2002/1727, art. 2

F82 S. 105(7BA) inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 41(4), 59(2)-(4); S.I. 2005/872, arts. 4, 5, Sch. (subject to arts. 6-12)

F83 S. 105(7BB) inserted (6.4.2010 for certain purposes and otherwise prosp.) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), ss. 40, 269(4), Sch. 1 para. 3; S.I. 2010/303, art. 4, Sch. 3 (with arts. 8-14) (as amended by S.I. 2010/1151, art. 22)

F84 S. 105(7C) inserted (24.4.2000) by 1999 c. 26, s. 16, Sch. 5 para. 5(3); S.I. 2000/875, art. 2 (with transitional provision in art. 3)

F85 S. 105(7D) inserted after subsection (7C) (15.1.2000) by virtue of S.I. 1999/3323, reg. 29(1)

F86 S. 105(7E) inserted (1.7.2000) by S.I. 2000/1551, reg. 10, Sch. para. 2(1)

F87 S. 105(7F) inserted (1.10.2002) by The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (S.I. 2002/2034), reg. 11, Sch. 2 Pt. 1 para. 3(10) (with regs. 13-20 and subject to transitional provisions in Sch. 2 Pt. 2)

F88 S. 105(7G) inserted (8.10.2004) by The European Public Limited-Liability Company Regulations 2004 (S.I. 2004/2326), regs. 1(2), 43(1)(b)

F89 S. 105(7H) inserted (6.4.2005) by The Information and Consultation of Employees Regulations 2004 (S.I. 2004/3426), regs. 1(1), 31(1)(b) (with reg. 3)

F90 S. 105(7I) inserted (6.4.2006) by The Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 (S.I. 2006/349), regs. 1(3), 17, Sch. para. 6(b)

F91 S. 105(7IA) inserted (6.4.2007) by The Employment Equality (Age) (Consequential Amendments) Regulations 2007 (S.I. 2007/825), reg. 3(2)

F92 S. 105(7IA) omitted (6.4.2011) by virtue of The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (S.I. 2011/1069), reg. 3(4) (with regs. 5, 6, 9)

F93 S. 105(7J) inserted (18.8.2006) by The European Cooperative Society (Involvement of Employees) Regulations 2006 (S.I. 2006/2059), reg. 32(1)(b)

F94 S. 105(7JA) inserted (30.6.2012) by Pensions Act 2008 (c. 30), ss. 57(4), 149(1); S.I. 2012/1682, art. 2, Sch. 2

F95 S. 105(7K) omitted (31.12.2020) by virtue of The Companies, Limited Liability Partnerships and Partnerships (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/348), reg. 2, Sch. 3 para. 6; 2020 c. 1, Sch. 5 para. 1(1)

F96 S. 105(7L) inserted (1.10.2009) by The European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009 (S.I. 2009/2401), reg. 30(2) (with reg. 41)

F97 S. 105(7M) inserted (2.3.2010) by The Employment Relations Act 1999 (Blacklists) Regulations 2010 (S.I. 2010/493), reg. 12(3)(b)

F98 S. 105(7N) substituted (6.4.2020) by The Agency Workers (Amendment) Regulations 2019 (S.I. 2019/794), regs. 1(1), 8(2) (with reg. 7)

106 Replacements. E+W+S

(1) Where this section applies to an employee he shall be regarded for the purposes of section 98(1)(b) as having been dismissed for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) This section applies to an employee where—

(a) on engaging him the employer informs him in writing that his employment will be terminated on the resumption of work by another employee who is, or will be, absent wholly or partly because of pregnancy or childbirth, [F99 or on adoption leave][F100 or [F101 shared parental leave]] and

(b) the employer dismisses him in order to make it possible to give work to the other employee.

(3) This section also applies to an employee where—

(a) on engaging him the employer informs him in writing that his employment will be terminated on the end of a suspension of another employee from work on medical grounds or maternity grounds (within the meaning of Part VII), and

(b) the employer dismisses him in order to make it possible to allow the resumption of work by the other employee.

(4) Subsection (1) does not affect the operation of section 98(4) in a case to which this section applies.

Textual Amendments

F99 Words in s. 106(2)(a) inserted (8.12.2002) by Employment Act 2002 (c. 22), s. 53, Sch. 7 para. 35; S.I. 2002/2866, art. 2(2), Sch. 1 Pt. 2

F100 Words in s. 106(2)(a) inserted (6.4.2010) by Work and Families Act 2006 (c. 18), ss. 11, 19, Sch. 1 para. 42; S.I. 2010/495, art. 4(d)

F101 Words in s. 106(2)(a) substituted (1.12.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 7 para. 40; S.I. 2014/1640, art. 5(2)(n) (with art. 12)

107 Pressure on employer to dismiss unfairly. E+W+S

(1) This section applies where there falls to be determined for the purposes of this Part a question—

(a) as to the reason, or principal reason, for which an employee was dismissed,

(b) whether the reason or principal reason for which an employee was dismissed was a reason fulfilling the requirement of section 98(1)(b), or

(c) whether an employer acted reasonably in treating the reason or principal reason for which an employee was dismissed as a sufficient reason for dismissing him.

(2) In determining the question no account shall be taken of any pressure which by calling, organising, procuring or financing a strike or other industrial action, or threatening to do so, was exercised on the employer to dismiss the employee; and the question shall be determined as if no such pressure had been exercised.

Exclusion of right E+W+S

108 Qualifying period of employment. E+W+S

(1) Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than [F102 two years] ending with the effective date of termination.

(2) If an employee is dismissed by reason of any such requirement or recommendation as is referred to in section 64(2), subsection (1) has effect in relation to that dismissal as if for the words [F102 “two years”] there were substituted the words “ one month ”.

(3) Subsection (1) does not apply if—

F103 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F104 (aa) subsection (1) of section 98B (read with subsection (2) of that section) applies,]

[F105 (b) subsection (1) of section 99 (read with any regulations made under that section) applies,]

(c) subsection (1) of section 100 (read with subsections (2) and (3) of that section) applies,

(d) subsection (1) of section 101 (read with subsection (2) of that section) or subsection (3) of that section applies,

[F106 (da) subsection (2) of section 101ZA applies (read with subsection (3) of that section) or subsection (4) of that section applies,]

[F107 (dd) section 101A applies,]

(e) section 102 applies,

(f) section 103 applies,

[F108 (ff) section 103A applies,]

(g) subsection (1) of section 104 (read with subsections (2) and (3) of that section) applies, F109 . . .

[F110 (gg) subsection (1) of section 104A (read with subsection (2) of that section) applies, F111 . . . ]

[F112 (gh) subsection (1) of section 104B (read with subsection (2) of that section) applies, F113 . . . ]

[F114 (gi) section 104C applies,]

[F115 (gj) subsection (1) of section 104D (read with subsection (2) of that section) applies,]

[F116 (gk) section 104E applies,]

[F117 (gl) subsection (1) of section 104F (read with subsection (2) of that section) applies,]

[F118 (gm) section 104G applies,]

(h) section 105 applies,F119 [F120 . . .

(hh) paragraph (3) or (6) of regulation 28 of the Transnational Information and Consultation of Employees Regulations 1999 (read with paragraphs (4) and (7) of that regulation) applies, ] F121 [F122 . . .

(i) paragraph (1) of regulation 7 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 applies,]

F123 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F124 (j) paragraph (1) of regulation 6 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 applies,]

F125 [F126 . . .

(k) paragraph (3) or (6) of regulation 42 of the European Public Limited-Liability Company Regulations 2004 applies,]

F127 [F128 . . .

(l) paragraph (3) or (6) of regulation 30 of the Information and Consultation of Employees Regulations 2004 (read with paragraphs (4) and (7) of that regulation) applies,] F129 [F130 . . .

(m) paragraph 5(3) or (5) of the Schedule to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 (read with paragraph 5(6) of that Schedule) applies] [F131 ...][F132 , or

(n) F133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(o) paragraph (3) or (6) of regulation 31 of the European Cooperative Society (Involvement of Employees) Regulations 2006 (read with paragraphs (4) and (7) of that regulation) applies,

F135 (p) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F136 (q) paragraph (1)(a) or (b) of regulation 29 of the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009( S.I. 2009/2401) applies, [F137 or

(r) paragraph (1) of regulation 17 of the Agency Workers Regulations 2010 applies]]]

[F138 (4) Subsection (1) does not apply if the reason (or, if more than one, the principal reason) for the dismissal is, or relates to, the employee's political opinions or affiliation.]

[F139 (5) Subsection (1) does not apply if the reason (or, if more than one, the principal reason) for the dismissal is, or is connected with, the employee's membership of a reserve force (as defined in section 374 of the Armed Forces Act 2006).]

Textual Amendments

F102 Words in s. 108(1)(2) substituted (6.4.2012) by The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 (S.I. 2012/989), arts. 1, 3 (with art. 4)

F103 S. 108(3)(a) repealed (15.12.1999) by 1999 c. 26, ss. 9, 44, Sch. 4 Pt. III para. 18, Sch. 9(2); S.I. 1999/2830, art. 2(2)(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11)

F104 S. 108(3)(aa) inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 40(6), 59(2)-(4); S.I. 2005/872, arts. 4, 5, Sch. (subject to arts. 6-12)

F105 S. 108(3)(b) substituted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 57(1), 59(2)-(4), Sch. 1 para. 32; S.I. 2005/872, arts. 4, 5, Sch. (subject to arts. 6-12)

F106 S. 108(3)(da) inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 10

F107 S. 108(3)(dd) inserted (1.10.1998) by S.I. 1998/1833, reg. 32(4)

F108 S. 108(3)(ff) inserted (2.7.1999) by 1998 c. 23, s. 7(1); S.I. 1999/1547, art. 2

F109 Word in s. 108(3)(g) repealed (1.11.1998) by 1998 c. 39, ss. 25(3), 53, Sch. 3; S.I. 1998/2574, art. 2(1), Sch. 1 (with art. 3)

F110 S. 108(3)(gg) inserted (1.11.1998) by 1998 c. 39, s. 25(3); S.I. 1998/2574, art. 2(1), Sch. 1 (with art. 3)

F111 Word in s. 108(3)(gg) repealed (5.10.1999) by 1999 c. 10, ss. 7, 19(4), 20(2), Sch. 3 para. 3(3), Sch. 6

F112 S. 108(3)(gh) inserted (5.10.1999) by 1999 c. 10, ss. 7, 20(2), Sch. 3 para. 3(3) (which amending Act was repealed (in part on 27.8.2002 and 4.12.2002, otherwise prosp.) by Tax Credits Act 2002 (c. 21), s. 60, Sch. 6; S.I. 2002/1727, art. 2) and insertion continued (1.9.2002 for certain purposes, otherwise prosp.) by Tax Credits Act 2002 (c. 21), s. 27, Sch. 1 para. 3(4); S.I. 2002/1727, art. 2

F113 Word in s. 108(3)(gh) omitted (15.1.2000) by virtue of S.I. 1999/3323, reg. 29(2)

F114 S. 108(3)(gi) inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 41(5), 59(2)-(4); S.I. 2005/872, arts. 4, 5, Sch. (subject to arts. 6-12)

F115 S. 108(3)(gj) inserted (30.6.2012) by Pensions Act 2008 (c. 30), ss. 57(5), 149(1); S.I. 2012/1682, art. 2, Sch. 2

F116 S. 108(3)(gk) inserted "after paragraph (gj)" (6.4.2010 for certain purposes and otherwise prosp.) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), ss. 40, 269(4), Sch. 1 para. 4; S.I. 2010/303, art. 4, Sch. 3 (with arts. 8-14) (as amended by S.I. 2010/1151, art. 22)

F117 S. 108(3)(gl) inserted (2.3.2010) by The Employment Relations Act 1999 (Blacklists) Regulations 2010 (S.I. 2010/493), reg. 12(4)

F118 S. 108(3)(gm) inserted (1.9.2013) by Growth and Infrastructure Act 2013 (c. 27), ss. 31(5), 35(1); S.I. 2013/1766, art. 2

F119 Word at the end of s. 108(3)(h) omitted (1.7.2000) by virtue of S.I. 2000/1551, reg. 10, Sch. para. 2(2)

F120 S. 108(hh) and preceding word inserted (15.1.2000) by S.I. 1999/3323, reg. 29(2)

F121 Word in s. 108(3)(hh) omitted (1.10.2002) by virtue of The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (S.I. 2002/2034), reg. 11, Sch. 2 Pt. 1 para. 3(11) (with regs. 13-20 and subject to transitional provisions in Sch. 2 Pt. 2)

F122 S. 108(3)(i) and word "or" preceding it inserted (1.7.2000) by S.I. 2000/1551, reg. 10, Sch. para. 2(2)

F123 Word in s. 108(3)(i) repealed (8.10.2004) by The European Public Limited-Liability Company Regulations 2004 (S.I. 2004/2326), regs. 1(2), 43(2)(a)

F124 S. 108(3)(j) and preceding word inserted (1.10.2002) by The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (S.I. 2002/2034), reg. 11, Sch. 2 Pt. 1 para. 3(11) (with regs. 13-20 and subject to transitional provisions in Sch. 2 Pt. 2)

F125 Word in s. 108(3)(j) repealed (6.4.2005) by The Information and Consultation of Employees Regulations 2004 (S.I. 2004/3426), regs. 1(1), 31(2)(a) (with reg. 3)

F126 S. 108(3)(k) and the preceding word "or" inserted (8.10.2004) by The European Public Limited-Liability Company Regulations 2004 (S.I. 2004/2326), regs. 1(2), 43(2)(b)

F127 Word in s. 108(3)(k) omitted (6.4.2006) by virtue of The Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 (S.I. 2006/349), regs. 1(3), 17, Sch. para. 6(2)(a)

F128 S. 108(3)(l) and the preceding word "or" inserted (6.4.2005) by The Information and Consultation of Employees Regulations 2004 (S.I. 2004/3426), regs. 1(1), 31(2)(b) (with reg. 3)

F129 Word in s. 108(3)(I) omitted (1.10.2006) by virtue of The Employment Equality (Age) Regulations 2006 (S.I. 2006/1031), reg. 49(1), Sch. 8 para. 24(a) (with regs. 44-46)

F130 S. 108(3)(m) and word inserted (6.4.2006) by The Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 (S.I. 2006/349), regs. 1(3), 17, Sch. para. 6(2)(b)

F131 By virtue of The European Cooperative Society (Involvement of Emplees) Regulation Regulations 2006 (S.I. 2006/2059), reg. 32(2)(a) it is provided that the word "or" at the end of s. 108(3)(m) is omitted (18.8.2006)

F132 S. 108(3)(n) and word inserted (1.10.2006) by The Employment Equality (Age) Regulations 2006 (S.I. 2006/1031), reg. 49(1), Sch. 8 para. 24(b) (with regs. 44-46)

F133 S. 108(3)(n) omitted (6.4.2011) by virtue of The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011(S.I. 2011/1069), {reg. 3(5)} (with regs. 5, 6, 9)

F134 S. 108: word immediately preceding para. 3(p) omitted (1.10.2009) by virtue of The European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009 (S.I. 2009/2401), reg. 30(3) (with reg. 41)

F135 S. 108(3)(p) omitted (31.12.2020) by virtue of The Companies, Limited Liability Partnerships and Partnerships (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/348), reg. 2, Sch. 3 para. 7; 2020 c. 1, Sch. 5 para. 1(1)

F136 S. 108(3)(q) and preceding word inserted (1.10.2009) by The European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009 (S.I. 2009/2401), reg. 30(3) (with reg. 41)

F137 S. 108(3)(r) and preceding word inserted (1.10.2011) by The Agency Workers Regulations 2010 (S.I. 2010/93), reg. 25, Sch. 2 para. 16 (as amended by S.I. 2011/1941, reg. 2(5)(b)(c))

F138 S. 108(4) inserted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 13, 103(2) (with s. 24(3))

F139 S. 108(5) inserted (1.10.2014) by Defence Reform Act 2014 (c. 20), ss. 48(2), 50(1) (with s. 48(4)); S.I. 2014/2370, art. 4(d)

Modifications etc. (not altering text)

C8 S. 108 excluded (4.9.2000) by 1999 c. 26, s. 12(4), (with ss. 14, 15); S.I. 2000/2242, art. 2

S. 108 excluded (6.6.2000) by 1992 c. 52, s. 70A, Sch. A1 para. 164 (as inserted (6.6.2000) by 1999 c. 26, ss. 1, 45(1), Sch. 1; S.I. 2000/1338, art. 2(a))

C9 S. 108 excluded (6.4.2010) by The Employee Study and Training (Procedural Requirements) Regulations 2010 (S.I. 2010/155), reg. 18(4)

C10 S. 108 excluded (11.1.2016) by The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 (S.I. 2015/2021), regs. 1(2), 2(5)

C11 S. 108 excluded (5.12.2022) by The Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022 (S.I. 2022/1145), regs. 1(2), 7(5)

C12 S. 108(1) excluded by 1992 c. 52, s. 154 (as substituted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 35, 59(2)-(4); S.I. 2005/872, arts. 4, 5, Sch. (subject to arts. 6-12))

109 Upper age limit. E+W+S

F140 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F140 S. 109 omitted (1.10.2006) by virtue of The Employment Equality (Age) Regulations 2006 (S.I. 2006/1031), reg. 49(1), Sch. 8 para. 25 (with regs. 44-46)

Modifications etc. (not altering text)

C13 S. 109 excluded (4.9.2000) by 1999 c. 26, s. 12(4), (with ss. 14, 15); S.I. 2000/2242, art. 2

S. 109 excluded (6.6.2000) by 1992 c. 52, s. 70A, Sch. A1 para. 164 (as inserted (6.6.2000) by 1999 c. 26, s. 1, Sch. 1; S.I. 2000/1338, art. 2(a))

110 Dismissal procedures agreements. E+W+S

(1) Where a dismissal procedures agreement is designated by an order under subsection (3) which is for the time being in force—

(a) the provisions of that agreement relating to dismissal shall have effect in substitution for any rights under section 94, and

(b) accordingly, section 94 does not apply to the dismissal of an employee from any employment if it is employment to which, and he is an employee to whom, those provisions of the agreement apply.

[F141 (2) But if the agreement includes provision that it does not apply to dismissals of particular descriptions, subsection (1) does not apply in relation to a dismissal of any such description.]

(3) An order designating a dismissal procedures agreement may be made by the Secretary of State, on an application being made to him jointly by all the parties to the agreement, if he is satisfied that—

(a) every trade union which is a party to the agreement is an independent trade union,

(b) the agreement provides for procedures to be followed in cases where an employee claims that he has been, or is in the course of being, unfairly dismissed,

(c) those procedures are available without discrimination to all employees falling within any description to which the agreement applies,

(d) the remedies provided by the agreement in respect of unfair dismissal are on the whole as beneficial as (but not necessarily identical with) those provided in respect of unfair dismissal by this Part,

[F142 (e) the agreement includes provision either for arbitration in every case or for—

(i) arbitration where (by reason of equality of votes or for any other reason) a decision under the agreement cannot otherwise be reached, and

(ii) a right to submit to arbitration any question of law arising out of such a decision, and]

(f) the provisions of the agreement are such that it can be determined with reasonable certainty whether or not a particular employee is one to whom the agreement applies.

(4) If at any time when an order under subsection (3) is in force in relation to a dismissal procedures agreement the Secretary of State is satisfied, whether on an application made to him by any of the parties to the agreement or otherwise, either—

(a) that it is the desire of all the parties to the agreement that the order should be revoked, or

(b) that the agreement no longer satisfies all the conditions specified in subsection (3),

the Secretary of State shall revoke the order by an order under this subsection.

(5) The transitional provisions which may be made in an order under subsection (4) include, in particular, provisions directing—

(a) that an employee—

(i) shall not be excluded from his right under section 94 where the effective date of termination falls within a transitional period which ends with the date on which the order takes effect and which is specified in the order, and

(ii) shall have an extended time for presenting a complaint under section 111 in respect of a dismissal where the effective date of termination falls within that period, and

(b) that, where the effective date of termination falls within such a transitional period, an [F143 employment tribunal] shall, in determining any complaint of unfair dismissal presented by an employee to whom the dismissal procedures agreement applies, have regard to such considerations as are specified in the order (in addition to those specified in this Part and section 10(4) and (5) of [F143 the Employment Tribunals Act 1996]).

[F144 (6) Where an award is made under a designated dismissal procedures agreement—

(a) in England and Wales it may be enforced, by leave of [F145 the county court], in the same manner as a judgment of the court to the same effect and, where leave is given, judgment may be entered in terms of the award, and

(b) in Scotland it may be recorded for execution in the Books of Council and Session and shall be enforceable accordingly.]

Textual Amendments

F141 S. 110(2) substituted (1.8.1998) by 1998 c. 8, s. 12(1) (with s. 12(5)); S.I. 1998/1658, art. 2(1), Sch. 1

F142 S. 110(3)(e) substituted (1.8.1998) by 1998 c. 8, s. 12(2) (with s. 12(5)); S.I. 1998/1658, art. 2(1), Sch. 1

F143 Words in s. 110(5)(b) substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a)(c) (with s 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

F144 S. 110(6) inserted (1.8.1998) by 1998 c. 8, s. 12(3); S.I. 1998/1658, art. 2(1), Sch. 1

F145 Words in s. 110(6)(a) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para. 52; S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)