Employment Rights Act 1996, section 108

Qualifying period of employment

Part X Unfair dismissal

(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 [F734two yearsF734] 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 [F734 “two years” F734] there were substituted the words “one month” .

(3)Subsection (1) does not apply if—

F735 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F736 (aa)subsection (1) of section 98B (read with subsection (2) of that section) applies,F736]

[F737 (b)subsection (1) of section 99 (read with any regulations made under that section) applies,F737]

(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,

[F738 (da)subsection (2) of section 101ZA applies (read with subsection (3) of that section) or subsection (4) of that section applies,F738]

[F739 (dd)section 101A applies,F739]

(e)section 102 applies,

(f)section 103 applies,

[F740 (ff)section 103A applies,F740]

(g)F741subsection (1) of section 104 (read with subsections (2) and (3) of that section) applies, . . .

[F742 (gg) subsection (1) of section 104A (read with subsection (2) of that section) applies, F743 . . . F742]

[F744 (gh) subsection (1) of section 104B (read with subsection (2) of that section) applies, F745 . . . F744]

[F746 (gi)section 104C applies,F746]

[F747 (gj)subsection (1) of section 104D (read with subsection (2) of that section) applies,F747]

[F748 (gk)section 104E applies,F748]

[F749 (gl)subsection (1) of section 104F (read with subsection (2) of that section) applies,F749]

[F750 (gm)section 104G applies,F750]

(h)section 105 applies, F751[F752. . .

(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, F752]F753[F754 . . .

(i)paragraph (1) of regulation 7 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 applies,F754]

F755 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F756 (j)paragraph (1) of regulation 6 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 applies,F756]

F757[F758 . . .

(k)paragraph (3) or (6) of regulation 42 of the European Public Limited-Liability Company Regulations 2004 applies,F758]

F759[F760 . . .

(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,F760]F761[F762 . . .

(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) appliesF762][F763 ...F763][F764 , or

(n)F765 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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,

F767 (p). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F768 (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, [F769 or

(r) paragraph (1) of regulation 17 of the Agency Workers Regulations 2010 appliesF769,F768,F764]]]

[F770 (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.F770]

[F771 (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).F771]

Definitions used in section 108 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
employed

and “employed” shall be construed accordingly.

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
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 108 36

Oakland v Wellswood (Yorkshire) Ltd

[2009] EWCA Civ 1094 · 30 July 2009

Applies the one-year continuous-employment requirement for an unfair-dismissal claim. The Court held that prior service counted under section 218, so the requirement was satisfied (see paras [6]; [16]).

Harper v Virgin Net Ltd

[2004] EWCA Civ 271 · 10 March 2004Limits

Identified as the section subject to which the right in section 94 operates and which contains the qualifying-service restrictions. (see paras [21], [23]) Requires, in the ordinary cases relevant here, one year’s continuous employment ending with the effective date of termination before the right not to be unfairly dismissed applies. (see paras [2], [9], [21]-[22], [25]-[31])

Humphreys v Persimmon Homes (Wales) Ltd

[2001] EWCA Civ 608 · 26 April 2001

Applies the one-year qualifying period for an unfair dismissal complaint. Because the claimant had completed only ten months’ service, he was not entitled to bring the claim and the Employment Tribunal was entitled to strike it out.

16 more judgments, and what each says about section 108, are in the case-law panel in the full Act.

Amendments and notes

42 notes from legislation.gov.uk

Amendments

  1. F734Words 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)
  2. F735S. 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)
  3. F736S. 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)
  4. F737S. 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)
  5. F738S. 108(3)(da) inserted (4.5.2016 for specified purposes) by Enterprise Act 2016 (c. 12), s. 44(1)(d), Sch. 5 para. 10 text inserted for certain specified purposes only, see the commentary.
  6. F739S. 108(3)(dd) inserted (1.10.1998) by S.I. 1998/1833, reg. 32(4)
  7. F740S. 108(3)(ff) inserted (2.7.1999) by 1998 c. 23, s. 7(1); S.I. 1999/1547, art. 2
  8. F741Word 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)
  9. F742S. 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)
  10. F743Word 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
  11. F744S. 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 text inserted, repealed prospectively or the amendment may be in effect for limited purposes, see the commentary.
  12. F745Word in s. 108(3)(gh) omitted (15.1.2000) by virtue of S.I. 1999/3323, reg. 29(2)
  13. F746S. 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)
  14. F747S. 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
  15. F748S. 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) text inserted prospectively or the amendment may be in effect for limited purposes, see the commentary.
  16. F749S. 108(3)(gl) inserted (2.3.2010) by The Employment Relations Act 1999 (Blacklists) Regulations 2010 (S.I. 2010/493), reg. 12(4)
  17. F750S. 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
  18. F751Word 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)
  19. F752S. 108(hh) and preceding word inserted (15.1.2000) by S.I. 1999/3323, reg. 29(2)
  20. F753Word 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)
  21. F754S. 108(3)(i) and word "or" preceding it inserted (1.7.2000) by S.I. 2000/1551, reg. 10, Sch. para. 2(2)
  22. F755Word 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)
  23. F756S. 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)
  24. F757Word 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)
  25. F758S. 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)
  26. F759Word 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)
  27. F760S. 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)
  28. F761Word 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)
  29. F762S. 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)
  30. F763By 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)
  31. F764S. 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)
  32. F765S. 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)
  33. F767S. 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)
  34. F768S. 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)
  35. F769S. 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))
  36. F770S. 108(4) inserted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 13, 103(2) (with s. 24(3))
  37. F771S. 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

  1. C127S. 108 excluded (4.9.2000) by 1999 c. 26, s. 12(4), (with ss. 14, 15); S.I. 2000/2242, art. 2
  2. C128S. 108 excluded (6.4.2010) by The Employee Study and Training (Procedural Requirements) Regulations 2010 (S.I. 2010/155), reg. 18(4)
  3. C129S. 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)
  4. C130S. 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)
  5. C131S. 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))