Employment Rights Act 1996, section 104

Assertion of statutory right

Part X Unfair dismissal

(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 [F682employment tribunalF682] ,

(b)F683the right conferred by section 86 of this Act, . . .

(c)F688the rights conferred by sections 68, 86, [F684145A, 145B,F684] 146, 168, [F685168A,F685][F686 168B,F686] 169 [F687, 170 and 236AF687] of the Trade Union and Labour Relations (Consolidation) Act 1992 (deductions from pay, union activities and time off) ...

[F689 (d)the rights conferred by the Working Time Regulations 1998, [F690 the Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (S.I. 2018/58)F690] , the Merchant Shipping (Working Time: Inland Waterway) Regulations 2003 [F691 , the Fishing Vessels (Working Time: Sea-fisherman) Regulations 2004 or the Cross-border Railway Services (Working Time) Regulations 2008F691] .F689][F692 , and

(e)the rights conferred by the Transfer of Undertakings (Protection of Employment) Regulations 2006.F692]

[F693 (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)).F693]

Definitions used in section 104 3

employee

(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

Defined in s.230(1) · see it in the full Act
employer

(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

Defined in s.230(4) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act
employment

(5) In this Act “employment”—

(a)in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and

(b)in relation to a worker, means employment under his contract;

Defined in s.230(5) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act

Cases considering section 104 21

Fadipe v Fairstaff Agency Ltd

[2001] EWCA Civ 1101 · 3 July 2001

The court treated section 104 as requiring the assertion of a relevant statutory right to be the reason for dismissal. No arguable deduction existed, and the Tribunal had also found that the employer’s complaint, not assertion of that right, caused the termination. (see unpaginated paragraphs beginning “If there was an unlawful deduction...” and “In any event it was not the reason for the dismissal.”)

L Tarbuc v Martello Piling Limited

[2026] EAT 58 · 28 April 2026

A section 104 claim requires dismissal because the employee brought proceedings to enforce, or alleged infringement of, a relevant statutory right. The ET1 did not allege an assertion that the employer had infringed such a right (see paras [45]-[48]). Whether the employee possessed the right or whether it was infringed is immaterial, provided the required claim and allegation were made in good faith. The missing element was an pleaded allegation of infringement, rather than proof of entitlement (see paras [45]-[48]). An employee need not specify the statutory right, but must make reasonably clear what right was said to have been infringed. A request for payment of a contractual bonus did not meet that pleading requirement (see paras [45]-[48]).

David Fong v David Montgomery & Ors

[2025] EAT 31 · 11 March 2025Defines

The provision supplied the other proposed legal label: automatic unfair dismissal for alleging infringement of a relevant statutory right. The court held that reliance on it re-labelled facts already pleaded, without deciding the merits (see paras [16]-[17]; [45]-[49]). The court recorded that good-faith assertion of the right and its infringement is sufficient even if the employee does not have the right or it was not infringed. It did not decide that issue (see para [16]). The court recorded that the employee need only make the alleged statutory right reasonably clear to the employer without specifying it. This supported the conclusion that imperfect legal labelling in the ET1 was not decisive (see paras [17]; [45]-[49]). The court identified the provision as including rights under the Act for which the remedy is a tribunal complaint within relevant statutory rights. It used this only to frame the proposed claim (see para [17]).

4 more judgments, and what each says about section 104, are in the case-law panel in the full Act.

Amendments and notes

12 notes from legislation.gov.uk

Amendments

  1. F682Words 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
  2. F683Word in s. 104(4)(b) omitted (1.10.1998) by virtue of S.I. 1998/1833, reg. 32(2)(a)
  3. F688Word 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)
  4. F684Words 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)
  5. F685Word 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)
  6. F686Word in s. 104(4)(c) inserted (6.1.2026 for specified purposes) by Employment Rights Act 2025 (c. 36), ss. 65(12), 159(3); S.I. 2026/3, reg. 2(22) text inserted for certain specified purposes only, see the commentary.
  7. F687Words in s. 104(4)(c) substituted (18.2.2026) by Employment Rights Act 2025 (c. 36), ss. 76(5), 159(3); S.I. 2026/3, reg. 3(7)
  8. F689S. 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)
  9. F690Words 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)
  10. F691Words 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)
  11. F692S. 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)
  12. F693S. 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