Employment Rights Act 1996, section 105

Redundancy

Part X Unfair dismissal

(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

F703[F704 (c)it is shown that any of subsections [F705 (2A) to [F706 (7N)F706,F705]] applies.F704]

F707 (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F708 (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).F708]

(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.

[F709 (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.F709]

(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.

[F710 (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.F710]

(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).

[F711 (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).F711]

[F712 (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).F712]

[F713 (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.F713]

[F714 (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.F714]

[F715 (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), F716...

F716 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .F715]

[F717 (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).F717]

[F718 (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).F718]

[F719 (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).F719]

[F720 (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).F720]

[F721 (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).F721]

[F722 (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).F722]

[F723 (7IA)F724 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F723]

[F725 (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).F725]

[F726 (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).F726]

F727 (7K). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F728 (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). F728]

[F729 (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.F729]

[F730 (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).F730]

(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.

Definitions used in section 105 8

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
position

“position”, in relation to an employee, means the following matters taken as a whole—

(a)

his status as an employee,

(b)

the nature of his work, and

(c)

his terms and conditions of employment,

Defined in s.235(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
protected

“protected”, in relation to a shop worker, shall be construed in accordance with section 36(1) to (5).

Defined in s.232(8) · see it in the full Act

“protected”, in relation to a betting worker, shall be construed in accordance with section 36(1) to (5).

Defined in s.233(5) · see it in the full Act
shop worker

(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a)a contract of employment, or

(b)any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

Defined in s.230(3) · see it in the full Act

(1) In this Act “shop worker” means an employee who, under his contract of employment, is or may be required to do shop work.

Defined in s.232(1) · see it in the full Act
opted-out

“opted-out”, in relation to a betting worker, shall be construed in accordance with section 41(1) and (2),

Defined in s.233(5) · see it in the full Act

“opted-out”, in relation to a shop worker, shall be construed in accordance with section 41(1) and (2),

Defined in s.232(8) · see it in the full Act
betting worker

(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a)a contract of employment, or

(b)any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

Defined in s.230(3) · see it in the full Act

(1) In this Act “betting worker” means an employee who under his contract of employment is or may be required to do betting work.

Defined in s.233(1) · see it in the full Act
the effective date of termination

(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

(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.

Defined in s.97(1) · see it in the full Act

Cases considering section 105 4

Donald Gormley v Phoenix Business Solutions (UK) Limited

[2025] EAT 198 · 22 December 2025

The EAT noted that the case did not concern a statutory category of automatic unfairness. It therefore considered ordinary fairness under section 98. (see para [5])

Ian Ritson v Milan Babic Architects Limited

[2024] EAT 95 · 2 May 2024

The Tribunal permissibly found that selection for redundancy was caused by the claimant being one of the two highest-paid employees, not by any protected disclosure. (see paras [29]; [44]; [48]-[49])

Ionel Ion v Citu Manufacturing Ltd & Anor

[2023] EAT 151 · 14 December 2023

The tribunal had classified the dismissal as one within this provision because it was part of a redundancy process. The EAT held that the whistleblowing claim nonetheless required factual findings and causal analysis. (see paras [19]; [33]-[34])

What each judgment says about section 105 is in the case-law panel in the full Act.

Amendments and notes

28 notes from legislation.gov.uk

Amendments

  1. F703By 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)" text substituted prospectively or the amendment may be in effect for limited purposes, see the commentary.
  2. F704S. 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)
  3. F705Words 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)
  4. F706Words 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
  5. F707S. 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)
  6. F708S. 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)
  7. F709S. 105(4A) inserted (1.10.1998) by S.I. 1998/1833, reg. 32(3)
  8. F710S. 105(6A) inserted (2.7.1999) by 1998 c. 23, s. 6; S.I. 1999/1547, art. 2
  9. F711S. 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)
  10. F712S. 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 text inserted, repealed prospectively or the amendment may be in effect for limited purposes, see the commentary.
  11. F713S. 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)
  12. F714S. 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) text inserted prospectively or the amendment may be in effect for limited purposes, see the commentary.
  13. F715S. 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)
  14. F716S. 105(7C)(b) and word omitted (29.7.2026) by virtue of The Trade Unions (Permissible Means of Voting) and Employment Rights (Unfair Dismissal) (Amendment) Order 2026 (S.I. 2026/881), arts. 1(2), 12 (with art. 13)
  15. F717S. 105(7D) inserted after subsection (7C) (15.1.2000) by virtue of S.I. 1999/3323, reg. 29(1)
  16. F718S. 105(7E) inserted (1.7.2000) by S.I. 2000/1551, reg. 10, Sch. para. 2(1)
  17. F719S. 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)
  18. F720S. 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)
  19. F721S. 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)
  20. F722S. 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)
  21. F723S. 105(7IA) inserted (6.4.2007) by The Employment Equality (Age) (Consequential Amendments) Regulations 2007 (S.I. 2007/825), reg. 3(2)
  22. F724S. 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)
  23. F725S. 105(7J) inserted (18.8.2006) by The European Cooperative Society (Involvement of Employees) Regulations 2006 (S.I. 2006/2059), reg. 32(1)(b)
  24. F726S. 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
  25. F727S. 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)
  26. F728S. 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)
  27. F729S. 105(7M) inserted (2.3.2010) by The Employment Relations Act 1999 (Blacklists) Regulations 2010 (S.I. 2010/493), reg. 12(3)(b)
  28. F730S. 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)