Employment Rights Act 1996, section 192

Armed forces

Part XIII Miscellaneous

(1)Section 191—

(a)applies to service as a member of the naval, military or air forces of the Crown but subject to the following provisions of this section, and

(b)M52applies to employment by an association established for the purposes of Part XI of the Reserve Forces Act 1996.

(2)The provisions of this Act which have effect by virtue of section 191 in relation to service as a member of the naval, military or air forces of the Crown are—

(a)Part I,

[F938 (aa)in Part V, [F939 sections [F940 43M,F940] 45A, 47C and 47D,F939] and sections 48 and 49 so far as relating to [F941 those sectionsF941] ,F938]

[F942 (ab)section 47C,F942]

[F943 (ac)Part 5B,F943]

(b)in Part VI, sections [F94455 to 57BF944] ,

(c)Parts VII and VIII,

[F945 (ca)Part 8B,F945]

(d)in Part IX, sections 92 and 93,

(e)Part X, apart from sections [F94698B(2) and (3),F946] 100 to 103 [F947, 104CF947][F948 , 108(5)F948] and 134, and

(f)this Part and Parts XIV and XV.

(3)Her Majesty may by Order in Council—

(a)amend subsection (2) by making additions to, or omissions from, the provisions for the time being specified in that subsection, and

(b)make any provision for the time being so specified apply to service as a member of the naval, military or air forces of the Crown subject to such exceptions and modifications as may be specified in the Order in Council,

but no provision contained in Part II may be added to the provisions for the time being specified in subsection (2).

(4)Modifications made by an Order in Council under subsection (3) may include provision precluding the making of a complaint or reference to any [F949employment tribunalF949] unless [F950—

(a)the person aggrieved has made [F951 a service complaintF951] ; and

(b)the Defence Council have made a determination with respect to the [F952 service complaintF952] .F950]

[F953 (5)Where modifications made by an Order in Council under subsection (3) include provision such as is mentioned in subsection (4), the Order in Council shall also include provision—

(a)enabling a complaint or reference to be made to an [F949 employment tribunalF949] in such circumstances as may be specified in the Order, notwithstanding that provision such as is mentioned in subsection (4) would otherwise preclude the making of the complaint or reference; and

(b)where a complaint or reference is made to an [F949 employment tribunalF949] by virtue of provision such as is mentioned in paragraph (a), enabling the [F954 the service complaint proceduresF954] to continue after the complaint or reference is made.F953]

[F955 (6A)In subsections (4) and (5)—

  • “service complaint” means a complaint under section 334 of the Armed Forces Act 2006 ;

  • “the service complaint procedures” means the procedures prescribed by regulations under that section. F955]

(7)No provision shall be made by virtue of subsection (4) which has the effect of substituting a period longer than six months for any period specified as the normal period for a complaint or reference.

(8) In subsection (7) “the normal period for a complaint or reference”, in relation to any matter within the jurisdiction of an [F949 employment tribunal F949] , means the period specified in the relevant enactment as the period within which the complaint or reference must be made (disregarding any provision permitting an extension of that period at the discretion of the tribunal).

Definitions used in section 192 1

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 192 5

Saggar v Ministry of Defence

[2005] EWCA Civ 413 · 27 April 2005Limits

The court explains that section 192(2) used an unfair-dismissal criterion concerned with the contract under which the employee ordinarily worked outside Great Britain. That criterion was distinct from the sex-discrimination test and limited the relevance of Carver to the present issue (see paras [29]–[33]).

Flight Sergeant (ret'd) Barbara Eyton-Hughes & Anor, R (on the application of) v The Secretary of State for Defence

[2024] EWHC 1932 (Admin) · 31 July 2024

Excludes service personnel from unfair-dismissal claims. The court held that this exclusion supported, rather than prevented, an interpretation of service-complaint redress capable of addressing otherwise irrecoverable post-resignation losses (see paras [62], [70], [76]).

THE BRITISH MEDICAL ASSOCIATION (R on the application of) v SECRETARY OF STATE FOR DEFENCE & ANOR.

[2022] EWHC 1262 (Admin) · 25 May 2022Interprets

Interprets the principal and transitory versions of section 192 as creating a power to determine when and how specified employment rights apply to service personnel. The decision to postpone implementation was assessed against the continuing duty to consider commencement from time to time. (see paras [9]-[11], [29], [64]-[65]) Applies the statutory limitation that only specified provisions of the Act apply to service personnel. The court accepted that unlawful deduction claims under Part II were not among the provisions specified. (see paras [9], [76(ii)]) Interprets section 192(3) as giving the decision-maker discretion over additions, omissions, exceptions and modifications, including how employment rights would interact with the Service Complaints system. That breadth supported a light-touch approach to review. (see paras [9], [49], [55]) Confirms that an Order in Council could require a service complaint and a Defence Council determination before an employment tribunal claim. The possibility of that condition was relevant to the statutory interaction between internal and external redress. (see paras [9], [49], [68], [76(iv)])

What each judgment says about section 192 is in the case-law panel in the full Act.

Amendments and notes

23 notes from legislation.gov.uk

Amendments

  1. F938S. 192(2)(aa) inserted (1.10.1998) by S.I. 1998/1833, reg. 31(4)
  2. F939Words in s. 192(2)(aa) substituted (1.9.2002 for certain purposes, otherwise prosp.) by Tax Credits Act 2002 (c. 21), s. 27, Sch. 1 para. 1(5)(a); S.I. 2002/1727, art. 2 text substituted prospectively or the amendment may be in effect for limited purposes, see the commentary.
  3. F940Words in s. 192(2)(aa) inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 57(1), 59(2)-(4), Sch. 1 para. 35(a); S.I. 2005/872, arts. 4, 5, Sch. (subject to arts. 6-12)
  4. F941Words in s. 192(2)(aa) substituted (1.9.2002 for certain purposes, otherwise prosp.) by Tax Credits Act 2002 (c. 21), s. 27, Sch. 1 para. 1(5)(b); S.I. 2002/1727, art. 2 text substituted prospectively or the amendment may be in effect for limited purposes, see the commentary.
  5. F942S. 192(2)(ab) inserted (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 31(a); S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 paras. 10, 11)
  6. F943S. 192(2)(ac) inserted (24.7.2023) by Protection from Redundancy (Pregnancy and Family Leave) Act 2023 (c. 17), ss. 1(4), 3(2)
  7. F944Words in s. 192(2)(b) substituted (15.12.1999) by 1999 c. 26, s. 9 Sch. 4 Pt. III para. 31(b); S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 paras. 10, 11)
  8. F945S. 192(2)(ca) inserted (4.12.2023) by Carer’s Leave Act 2023 (c. 18), s. 3(3), Sch. para. 10; S.I. 2023/1283, reg. 2
  9. F946Words in s. 192(2)(e) inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 57(1), 59(2)-(4), Sch. 1 para. 35(b); S.I. 2005/872, arts. 4, 5, Sch. (subject to arts. 6-12)
  10. F947Words in s. 192(2)(e) inserted (6.4.2003) by Employment Act 2002 (c. 22), s. 53, Sch. 7 para. 42; S.I. 2002/2866, art. 2(3), Sch. 1 Pt. 3
  11. F948Word in s. 192(2)(e) inserted (1.10.2014) by Defence Reform Act 2014 (c. 20), ss. 48(3), 50(1); S.I. 2014/2370, art. 4(d)
  12. F949Words in s. 192(4)(5)(a)(b)(8) 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
  13. F950Paras. (a)(b) substituted for words in s. 192(4) (1.10.1997) by 1996 c. 46, s. 26(2); S.I. 1997/2164, art. 2
  14. F951Words in s. 192(4)(a) substituted (1.1.2008) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 136(a)(i); S.I. 2007/2913, art. 3
  15. F952Words in s. 192(4)(b) substituted (1.1.2008) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 136(a)(ii);; S.I. 2007/2913, art. 3
  16. F953S. 192(5) substituted (1.10.1997) by 1996 c. 46, s. 26(3); S.I. 1997/2164, art. 2
  17. F954Words in s. 192(5)(b) substituted (1.1.2008) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 136(b); S.I. 2007/2913, art. 3
  18. F955S. 192(6A) substituted (1.1.2008) for s. 192(6) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 136(c); S.I. 2007/2913, art. 3

Modifications

  1. C187As s. 31 of the Trade Union Reform and Employment Rights Act 1993 has not come into force before the commencement of this Act (22.8.1996), this Act shall have effect until the relevant commencement date as if for section 192 there were substituted the words expressed in Sch. 2 Part II para. 16(1) of this Act. The relevant commencement date is defined by Sch. 2 Part II para 16(2) of this Act.
  2. C188As Part XI of the Reserve Forces Act 1996 has not come into force before the commencement of this Act (22.8.1996), section 192 of this Act shall have effect until the relevant commencement date as if for "Part XI of the Reserve Forces Act 1996" there were substituted "Part VI of the Reserve Forces Act 1980". The relevant commencement date is defined by Sch. 2 Part II para 17(2).
  3. C189S. 192(4) modified (24.4.2009) by The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059), art. 196(1)(f)
  4. C190S. 192(5) modified (24.4.2009) by The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059), art. 196(2)(f)

Marginal citations

  1. M521996 c. 14.