Employment Rights Act 1996, section 136

Circumstances in which an employee is dismissed

Part XI Redundancy payments etc.

(1)Subject to the provisions of this section and sections 137 and 138, for the purposes of this Part an employee is dismissed by his employer if (and only if)—

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

[F846 (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, orF846]

(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)Subsection (1)(c) does not apply if the employee terminates the contract without notice in circumstances in which he is entitled to do so by reason of a lock-out by the employer.

(3)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 obligatory period of notice the employee gives notice in writing 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.

(4) In this Part the “obligatory period of notice”, in relation to notice given by an employer to terminate an employee’s contract of employment, means—

(a)the actual period of the notice in a case where the period beginning at the time when the notice is given and ending at the time when it expires is equal to the minimum period which (by virtue of any enactment or otherwise) is required to be given by the employer to terminate the contract of employment, and

(b)the period which—

(i)is equal to the minimum period referred to in paragraph (a), and

(ii)ends at the time when the notice expires,

in any other case.

(5)Where in accordance with any enactment or rule of law—

(a)an act on the part of an employer, or

(b)an event affecting an employer (including, in the case of an individual, his death),

operates to terminate a contract under which an employee is employed by him, the act or event shall be taken for the purposes of this Part to be a termination of the contract by the employer.

Definitions used in section 136 9

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
dismissed

“dismissal” and “dismissed” shall be construed in accordance with sections 136 to 138,

Defined in s.181(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
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
limiting event

(2B) In this Act, “limiting event”, in relation to a contract of employment or other worker’s contract means—

(a)in the case of a contract for a fixed-term, the expiry of the term,

(b)in the case of a contract made in contemplation of the performance of a specific task, the performance of the task, and

(c)in the case of a contract which provides for its termination on the occurrence of an event (or the failure of an event to occur), the occurrence of the event (or the failure of the event to occur).

Defined in s.235(2B) · see it in the full Act
lock-out

(4) In sections 136(2), 154 and 216(3) and paragraph 14 of Schedule 2 “lock-out” means—

(a)the closing of a place of employment,

(b)the suspension of work, or

(c)the refusal by an employer to continue to employ any number of persons employed by him in consequence of a dispute,

Defined in s.235(4) · see it in the full Act
contract of employment

(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

Defined in s.230(2) · see it in the full Act
obligatory period of notice

“obligatory period of notice” has the meaning given by section 136(4), and

Defined in s.181(1) · see it in the full Act
act

“act” and “action” each includes omission and references to doing an act or taking action shall be construed accordingly,

Defined in s.235(1) · see it in the full Act

Cases considering section 136 7

Rose v Dodd

[2005] EWCA Civ 957 · 27 July 2005Interprets

An act or event deemed to be an employer’s termination must first operate, under an enactment or rule of law, to terminate the contract. The intervention did not do so and therefore was not a deemed dismissal. (see paras [20]-[22]; [38])

East London NHS Foundation Trust v O'Connor

[2019] UKEAT 0113_19_2910 · 29 October 2019Limits

A dismissal requires communication that the employer is terminating the contract of employment, effective on a stated or unambiguously ascertainable date. Whether a role-ending communication has that effect depends on its objective meaning in the full factual context. The court left open whether a genuinely frustrating event falls within section 136(5). It held that deletion of a role by the employer could not be frustration because it was the employer’s own conduct.

Lees v Imperial College Of Science Technology And Medicine (Redundancy)

[2016] UKEAT 0288_15_1401 · 14 January 2016Interprets

Section 136(1)(a) distinguishes termination of the employee’s contract by the employer from mere continuation of service under a fresh contract. (see paras [2]-[4]) Section 136(1)(c) applies where an employee terminates the contract because of the employer’s repudiatory conduct. Failure to make available the contracted job will usually meet that standard, subject to the contract’s express terms. (see paras [24]-[30])

What each judgment says about section 136 is in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Amendments

  1. F846S. 136(1)(b) 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(13) (with regs. 13-20 and subject to transitional provisions in Sch. 2 Pt. 2)