Pregnant women and new mothers: Government consults on enhanced dismissal protections

The Government is consulting on Regulations under the Employment Rights Bill which will make it unlawful to dismiss pregnant women and new mothers during maternity leave and for at least six months after they return to work, except in specific circumstances. The consultation considers in what circumstances employers should still be able to fairly dismiss pregnant women and new mothers, when these protections should apply and whether similar protections should be afforded to other groups, such as those on adoption and shared parental leave.

Current law

It is already unlawful to discriminate against women because they are pregnant or because they are, or have been, on maternity leave. Pregnant women and new mothers also have enhanced protections in redundancy situations, with employers having to offer them any suitable available vacancy. This protection begins when the woman tells her employer that she is pregnant and ends 18 months after the child’s birth (or if a woman does not have the right to maternity leave it ends two weeks after the end of the pregnancy). A failure by the employer to comply renders the dismissal automatically unfair. It is also automatically unfair to dismiss a woman or select her for redundancy if the reason is connected with her pregnancy or maternity leave.

If a woman is dismissed for reason unrelated to pregnancy or maternity leave, she has the same protection against unfair dismissal as other employees. Employers can dismiss where they have a fair reason for dismissal and it is reasonable to dismiss for that reason in the circumstances i.e. dismissal falls within the range of reasonable responses. There are five potentially fair reason for dismissal: conduct, capability, redundancy, statutory prohibition (where continuing to employ the employee would break the law) and some other substantial reason (such as an irreparable breakdown in the working relationship).

Employment Rights Bill

The Employment Rights Bill gives the Government the power to enhance dismissal protections for pregnant women and new mothers through Regulations. The Bill is expected to receive Royal Assent at the end of October or early November.

Consultation

The consultation seeks view on the circumstances in which employers should still be able to fairly dismiss pregnant women and new mothers. It also considers when these protections should start and whether similar protections should be afforded to other groups, such as those on adoption and shared parental leave.

When should dismissal still be allowed?

The Government is considering two options, or a combination of the two.

Option 1: Allowing employers to dismiss for any of the existing five potentially fair reasons outlined above, but requiring them to meet a new stricter standard (instead of the range of reasonable responses test) when relying on that reason to dismiss a pregnant woman or new mother. It seeks views on what that new stricter standard might be and whether, perhaps, it should be necessary to show that continued employment would have a significantly detrimental effect on the business or pose a health and safety risk to customers, staff, or the public or have a serious negative impact on the wellbeing of others. It asks what other tests might be considered.

Option 2: Narrowing the scope of and/or removing some of the fair reasons for dismissal.

‘Conduct’ might, for example, be limited to dismissal for gross misconduct. Alternatively employers could retain the ability to dismiss for all conduct reasons, but only if continued employment poses a health and safety risks to customers, staff or the public, would have a serious negative impact on the wellbeing of others or cause significant harm to the business.

‘Capability’ could be removed as a fair reason for dismissal (so dismissal for poor performance would not be permitted) or could be retained as a fair reason but only if no suitable alternative role is available (or one was offered and turned down) or only if the employer can clearly show the employee won’t be able to do the job after the protected period ends. Alternatively dismissal could be allowed but only if continued employment poses a health and safety risk or has a serious negative impact on the wellbeing of others.

When it comes to redundancy, the Government seek views on whether this ground should be narrowed so that a fair dismissal on grounds of redundancy should be confined to cases where there is no suitable alternative vacancy and dismissal is needed to mitigate financial difficulties affecting the employer’s ability to continue its business (a ‘dire financial straits’ test) . Another option would be permit redundancy dismissals where the business ceases to exist and the employee has been offered any suitable alternative vacancy with the employer or an associated employer.

As regards ‘statutory prohibition’, it asks whether in such cases (where it is illegal to continue the employee’s employment) pregnant women and new mothers should have the right to be offered a suitable alternative role before dismissal (where there is such a role which would not also be subject to ‘statutory prohibition’). It gives the example of a solicitor who has forgotten to renew their practising certificate who might be offered a paralegal role (if there is one) until she is able to renew her certificate.

The Government noted that SOSRA is a broad category which is hard to define and therefore raises important questions about whether it should apply to pregnant women and new mothers. It asks whether employers should only be able to dismiss for SOSR if there’s no alternative role (or one was offered and turned down) or only where continuing employment would seriously harm the business, pose health and safety risks or have a serious negative impact on the wellbeing of others.

When should the protection start and end?

The length of the protected period

The Government seeks views on when the enhanced dismissal protections should start and end. It notes that the existing enhanced redundancy protections start when the employee tells her employer she is pregnant and end 18 months from the child’s birth. It seeks view on whether the new protections should apply from when the employee becomes pregnant, when she becomes aware she is pregnant, when she informs her employer she is pregnant or at some other point. In terms of end date, it seeks views on whether the protection should end 18 months from the birth of the child (as for the enhanced redundancy protections) or six months from the return to work (which could be sooner than 18 months from birth if the mother does not take her full maternity leave entitlement).

It also ask whether women who are not entitled to maternity leave should be protected against dismissal for two weeks after the end of their pregnancy (as is the case for enhanced redundancy protections).

A day one right?

Under the Employment Rights Bill, the Government plans to remove the two year qualifying period for making an ‘ordinary’ unfair dismissal claim, but allow employers to use a ‘lighter-touch’ dismissal process during an initial statutory probationary period (possibly 9 months).

Most ‘automatic’ unfair dismal claims are already a day one right, as are the other protections against dismissal for pregnant women and new mothers.

The Government seeks view on whether employees should be entitled to the enhanced protections when the employment relationship begins (when the contract is signed), from the day they start work, after an initial period of employment (of between three to nine months) or at some other point.

Should other parents have similar protections?

The Government notes that it is not just pregnant women who have extended periods of family leave and asks whether parents taking adoption leave, shared parental leave, neonatal care leave and bereaved partner’s paternity leave (not yet in force) should also be protected while on leave and for a time after they return to work. If so, it ask how long the protection should last.

Mitigating unintended consequences

The Government also asks if there is a risk of unintended consequences arising from these enhanced protections, such as employers becoming more hesitant to hire women of child bearing age or negative perceptions of workplace fairness /culture (if pregnant women and new mothers are perceived to have undue protections).

The consultation can be viewed here and remains open until 15 January 2026.

The Government has already confirmed in its implementation roadmap that the enhanced protections are not expected to be in force until 2027.