# Unfair dismissal: the qualifying period and exceptions

> **Key takeaway:** Currently: 2 years' service needed (ERA 1996 s.108), subject to exceptions with no qualifying period. From 1 Jan 2027 (Employment Rights Act 2025): reduces to 6 months. Always check the effective date of termination against the commencement date before applying either rule.

- **Jurisdiction:** England & Wales
- **Practice area:** Employment
- **Last reviewed:** 2026-08-04
- **Interactive page:** https://kttclegal.info/library/notes/Employment/unfair-dismissal-qualifying-period
- **Keywords:** unfair dismissal, qualifying period, Employment Rights Act 1996, Employment Rights Act 2025, s.108, six month qualifying period

## What is this about?

The right not to be unfairly dismissed (Employment Rights Act 1996, s.94) is subject to a minimum period of continuous employment before most employees can bring a claim. That qualifying period is currently changing under the Employment Rights Act 2025, making this an area where the headline figure a reader half-remembers may already be out of date.

## What is the core rule?

LAW IN TRANSITION — read the effective date carefully. As things currently stand, ERA 1996 s.108 excludes the unfair dismissal right unless the employee has at least two years' continuous employment ending with the effective date of termination, subject to a list of exceptions in s.108(3) (automatically unfair reasons, such as dismissal connected to whistleblowing, pregnancy, or asserting a statutory right, where no qualifying period applies at all). The Employment Rights Act 2025 (c.36) amends s.108 to reduce the qualifying period to six months, expected to take effect for dismissals on or after 1 January 2027. Until that date, the two-year rule remains current law.

## What are the elements or test?

1. Confirm the effective date of termination and whether it falls before or after the 2027 change takes effect
2. Under current law: at least two years' continuous employment ending with the effective date of termination (s.108(1))
3. Check the s.108(3) exceptions list — several dismissal reasons carry no qualifying period at all, regardless of length of service
4. From the 2027 change: the qualifying period reduces to six months, per amendments made by the Employment Rights Act 2025

## Which authorities matter?

- **Employment Rights Act 1996, ss.94 and 108** — s.94 creates the right not to be unfairly dismissed; s.108 sets the qualifying period and lists exceptions where no qualifying period applies.
- **Employment Rights Act 2025 c.36 (amending ERA 1996 s.108)** — Reduces the qualifying period from two years to six months, expected to take effect from 1 January 2027. Not yet in force at the time of writing — check the current position before relying on either figure.

## How does this apply in practice?

Always establish the effective date of termination first — this single fact determines which version of the rule applies. Given the scale of the 2027 change (a shift from two years to six months affects a very large proportion of the workforce), this entry should be treated as provisional until the commencement position is confirmed and updated.

## What are common pitfalls?

- Citing the two-year rule as settled, permanent law without noting the 2025 Act's amendment and its 2027 effective date
- Assuming the government's original 'day one right' proposal became law — it did not; the final position is a six-month qualifying period, adopted after the day-one proposal was dropped
- Missing that the s.108(3) exceptions (no qualifying period at all) already apply today, independent of the 2027 change

## When would a practitioner use this?

Relevant whenever assessing whether an employee has accrued enough service to bring an ordinary unfair dismissal claim, and increasingly relevant to reviewing probation periods and early-service dismissal practices as the 2027 change approaches.

## Quick reference

Currently: 2 years' service needed (ERA 1996 s.108), subject to exceptions with no qualifying period. From 1 Jan 2027 (Employment Rights Act 2025): reduces to 6 months. Always check the effective date of termination against the commencement date before applying either rule.

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*Reference material from [KTTC Legal](https://kttclegal.info/), not legal advice. Work product supports instructing solicitors and barristers under their supervision. England & Wales.*