Employment Rights Act 1996, section 98

General

Part X Unfair dismissal

(1)In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

(a)the reason (or, if more than one, the principal reason) for the dismissal, and

(b)that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2)A reason falls within this subsection if it—

(a)relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)relates to the conduct of the employee,

[F634 (ba)F635. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .F634]

(c)is that the employee was redundant, or

(d)is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

[F636 (2A)F635. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .F636]

(3)In subsection (2)(a)—

(a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and

(b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.

[F637 (3A)F635. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .F637]

(4)[F638 WhereF638] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

(a)depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b)shall be determined in accordance with equity and the substantial merits of the case.

F639 (5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)[F640 Subsection (4)F640][F641 isF641] subject to—

(a)sections [F64298AF642] to 107 of this Act, and

(b)M32sections 152, 153 [F643, 238 and 238AF643] of the Trade Union and Labour Relations (Consolidation) Act 1992 (dismissal on ground of trade union membership or activities or in connection with industrial action).

Definitions used in section 98 6

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
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
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
trade union

“trade union” has the meaning given by section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992 ,

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

“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 98 722

Royal Mail Group Ltd v Jhuti

[2019] UKSC 55 · 27 November 2019Disapplies

The general unfair dismissal regime differs from section 103 A because it permits an assessment of whether dismissal for an established permissible reason was reasonable in all the circumstances (see para [30]). The employer must establish the reason or principal reason for dismissal and that it falls within a specified permissible category. The interpretation of the same reason-for-dismissal language under section 103 A applies equally here (see paras [30]; [39]). The Court of Appeal treated the decision-maker-centred inquiry under section 103 A as also applicable to the corresponding reason-for-dismissal language in this provision. The Supreme Court imposed the narrow hidden-reason qualification (see paras [37]; [60]–[62]). The interpretation of the employer’s reason for dismissal affects the assessment whether the employer acted reasonably in treating that reason as sufficient (see paras [39]; [49]). This provision excludes the reasonableness assessment under section 98(4) from dismissals governed by section 103 A, making unfairness automatic once the prohibited reason is established (see para [30]).

Reilly v Sandwell Metropolitan Borough Council

[2018] UKSC 16 · 14 March 2018Interprets

Section 98 divides the unfair-dismissal inquiry between identifying a permissible reason for dismissal and determining whether the employer reasonably treated that reason as sufficient. The latter inquiry applies the range-of-reasonable-responses standard (see paras [16]–[23]). These subsections govern whether the employer has shown the reason for dismissal and that it concerns conduct or another permissible ground. The agreed non-disclosure satisfied this stage (see paras [16]; [20]). The court left open whether conduct which is not contractual misconduct can constitute some other substantial reason capable of justifying dismissal (see para [32]). The admitted non-disclosure related to the employee’s conduct. The court left open whether conduct which is not contractual misconduct can fall within this provision (see paras [16]; [24]; [32]). The tribunal must determine whether the employer acted reasonably in treating the established reason as sufficient for dismissal, applying equity and the substantial merits. The operative question is whether dismissal fell within the range of reasonable responses (see paras [17]–[23]; [29]).

University of Technology, Jamaica v Industrial Disputes Tribunal and others

[2017] UKPC 22 · 17 July 2017Interprets

Section 98 is used to explain the United Kingdom statutory approach to determining whether a dismissal is fair or unfair. (see paras [19]-[21]) Section 98(2) includes a reason relating to the employee’s conduct among the reasons capable of justifying dismissal under the United Kingdom scheme. (see para [19]) Section 98(4) requires fairness to be assessed by reference to whether the employer acted reasonably in treating the reason as sufficient, in accordance with equity and the substantial merits of the case. (see paras [19]-[21]) Section 98(4)(a) is used to show that United Kingdom fairness depends on whether the employer acted reasonably in treating the reason as sufficient in the circumstances. (see para [19]) Section 98(4)(b) is used to identify the additional requirement that fairness be determined in accordance with equity and the substantial merits of the case. (see para [19])

702 more judgments, and what each says about section 98, are in the case-law panel in the full Act.

Amendments and notes

13 notes from legislation.gov.uk

Amendments

  1. F634S. 98(2)(ba) inserted (1.10.2006) by The Employment Equality (Age) Regulations 2006 (S.I. 2006/1031), regs. 1(1), 49(1), Sch. 8 para. 22(2) (with regs. 44-46)
  2. F635S. 98(2)(ba)(2A)(3A) omitted (6.4.2011) by virtue of The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (S.I. 2011/1069), reg. 3(2)(a) (with regs. 5, 6, 9)
  3. F636S. 98(2A) inserted (1.10.2006) by The Employment Equality (Age) Regulations 2006 (S.I. 2006/1031), regs. 1(1), 49(1), Sch. 8 para. 22(3) (with regs. 44-46)
  4. F637S. 98(3A) inserted (1.10.2006) by The Employment Equality (Age) Regulations 2006 (S.I. 2006/1031), regs. 1(1), 49(1), Sch. 8 para. 22(4) (with regs. 44-46)
  5. F638Word in s. 98(4) substituted (6.4.2011) by The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (S.I. 2011/1069), reg. 3(2)(b) (with regs. 5, 6, 9)
  6. F639S. 98(5) repealed (15.12.1999) by 1999 c. 26, ss. 9, 44, Sch. 4 Pt. III para. 15(a), 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)
  7. F640Words in s. 98(6) substituted (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 15(b); S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 paras. 10, 11)
  8. F641Word in s. 98(6) substituted (1.10.2004) by Employment Act 2002 (c. 22), ss. 53, 55(2), Sch. 7 para. 32(a); S.I. 2004/2185, art. 2
  9. F642Word in s. 98(6)(a) substituted (1.10.2004) by Employment Act 2002 (c. 22), ss. 53, 55(2), Sch. 7 para. 32(b); S.I. 2004/2185, art. 2
  10. F643Words in s. 98(6)(b) substituted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 57(1), 59(2)-(4), Sch. 1 para. 30; S.I. 2005/872, arts. 4, 5, Sch. (subject to arts. 6-12)

Modifications

  1. C122S. 98(1) modified (1.1.1999) by 1998 Measure No. 1, s. 6(1), Sch. 3 para. 3(2)(b); Instrument dated 14.10.1998 made by the Archbishops of Canterbury and York
  2. C123S. 98(1) modified by SI 2006/246 reg. 7(3)(b) (as substituted (31.1.2014) by The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (S.I. 2014/16), regs. 1(2), 8(1) (with reg. 8(2)))

Marginal citations

  1. M321992 c. 52.