Employment Rights Act 1996

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 [F1 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 [F1 “two years”] there were substituted the words “ one month ”.

(3) Subsection (1) does not apply if—

F2 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F3 (aa) subsection (1) of section 98B (read with subsection (2) of that section) applies,]

[F4 (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,

[F5 (dd) section 101A applies,]

(e) section 102 applies,

(f) section 103 applies,

[F6 (ff) section 103A applies,]

(g) subsection (1) of section 104 (read with subsections (2) and (3) of that section) applies, F7 . . .

[F8 (gg) subsection (1) of section 104A (read with subsection (2) of that section) applies, F9 . . . ]

[F10 (gh) subsection (1) of section 104B (read with subsection (2) of that section) applies, F11 . . . ]

[F12 (gi) section 104C applies,]

[F13 (gj) subsection (1) of section 104D (read with subsection (2) of that section) applies,]

[F14 (gk) section 104E applies,]

[F15 (gl) subsection (1) of section 104F (read with subsection (2) of that section) applies,]

(h) section 105 applies,F16 [F17 . . .

(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, ] F18 [F19 . . .

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

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

[F21 (j) paragraph (1) of regulation 6 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 applies,]

F22 [F23 . . .

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

F24 [F25 . . .

(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,] F26 [F27 . . .

(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] [F28 ...][F29 , or

(n) F30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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,

F31 [F32 . . .

(p) regulation 46 or 47 of the Companies (Cross-Border Mergers) Regulations 2007 applies F33 . . . ]

[F34 (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, [F35 or

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

Textual Amendments

F1 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)

F2 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)

F3 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)

F4 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)

F5 S. 108(3)(dd) inserted (1.10.1998) by S.I. 1998/1833, reg. 32(4)

F6 S. 108(3)(ff) inserted (2.7.1999) by 1998 c. 23, s. 7(1); S.I. 1999/1547, art. 2

F7 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)

F8 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)

F9 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

F10 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

F11 Word in s. 108(3)(gh) omitted (15.1.2000) by virtue of S.I. 1999/3323, reg. 29(2)

F12 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)

F13 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

F14 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)

F15 S. 108(3)(gl) inserted (2.3.2010) by The Employment Relations Act 1999 (Blacklists) Regulations 2010 (S.I. 2010/493), reg. 12(4)

F16 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)

F17 S. 108(hh) and preceding word inserted (15.1.2000) by S.I. 1999/3323, reg. 29(2)

F18 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)

F19 S. 108(3)(i) and word "or" preceding it inserted (1.7.2000) by S.I. 2000/1551, reg. 10, Sch. para. 2(2)

F20 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)

F21 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)

F22 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)

F23 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)

F24 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)

F25 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)

F26 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)

F27 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)

F28 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)

F29 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)

F30 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)

F31 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)

F32 S. 108(3)(p) and word inserted (15.12.2007) by The Companies (Cross-Border Mergers) Regulations 2007 (S.I. 2007/2974), reg. 48(2)(b)

F33 Word at the end of s. 108(3)(p) omitted (1.10.2011) by virtue of 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)(a))

F34 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)

F35 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))

Modifications etc. (not altering text)

C1 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))

C2 S. 108 excluded (6.4.2010) by The Employee Study and Training (Procedural Requirements) Regulations 2010 (S.I. 2010/155), reg. 18(4)

C3 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

F36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F36 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)

C4 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.

[F37 (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,

[F38 (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 [F39 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 [F39 the Employment Tribunals Act 1996]).

[F40 (6) Where an award is made under a designated dismissal procedures agreement—

(a) in England and Wales it may be enforced, by leave of a 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

F37 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

F38 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

F39 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

F40 S. 110(6) inserted (1.8.1998) by 1998 c. 8, s. 12(3); S.I. 1998/1658, art. 2(1), Sch. 1