Employment Rights Bill Consultations: Enhanced Dismissal Protections For Pregnant Women And New Mothers

The autumn wave of consultations related to the Employment Rights Bill has begun, with a consultation on enhancing dismissal protections for pregnant women and new mothers among the first four. We explore how the government is proposing to add a greater level of protection on top of the existing unfair dismissal regime.

Recent figures collected by the organisation Pregnant Then Screwed indicate that 74,000 women a year – approximately one every seven minutes - lose their job when pregnant or on maternity leave. This represents a steep increase of 37% in less than 10 years. The government has highlighted this issue as a key focus in the Employment Rights Bill.

As we explored In our article earlier this year, the Employment Rights Bill empowers the government to introduce regulations to limit the circumstances in which employers can dismiss pregnant women or new mothers. This would build upon existing protections that prioritise this group for redeployment opportunities in redundancy situations, which were extended earlier this year. It has been unclear exactly what this would mean for employers in practice so it was hoped the consultation would begin to provide some of this detail.

What is the consultation about?

The consultation seeks views on a wide range of questions including:

• The circumstances in which employers should be able to dismiss a pregnant woman or new mother fairly;
• When this protection should start;
• How to mitigate against unintended consequences arising from this policy;
• How to best support businesses through the change; and
• What other forms of family leave should be similarly protected.

How could employers fairly dismiss?

At the heart of this consultation are the existing five potentially fair reasons for dismissal (conduct, capability, redundancy, statutory restriction, and 'some other substantial reason'). The consultation asks whether these should continue to apply to dismissals in these circumstances, or how they might be modified to enhance protection for this potentially vulnerable group.

The consultation proposes two options within this framework: one that adds an additional layer of protection with a new fairness test, and another that narrows the range of potentially fair reasons for dismissal.

Option 1 – a new fairness test

Employers would still be able to rely on the existing fair reasons for dismissal when dismissing a pregnant woman or new mother, but the regulations would introduce an additional, stricter test for showing that a dismissal was fair.

The example given in the consultation is that employers would need to show a fair reason for dismissal and also show that the dismissal was 'necessary'. This might be to avoid serious harm to the business or other staff, for example.

This option has value in its simplicity: the familiar framework will be retained with an overlay of a further stricter test. However, to provide meaningful protection, the additional test is likely to set a high bar. Also, it's unclear whether the same test would apply across all grounds of dismissal, which encompass very different factual circumstances.

Option 2 – narrowing/removing the potentially fair reasons for dismissal

This approach would limit the scope of the existing potentially fair reasons for dismissal, and could remove some of these altogether.

For each of these reasons for dismissal, the consultation seeks feedback on a range of options. These options are tailored to the specific reason for dismissal. Options common to capability, conduct and SOSR include permitting dismissal if continued employment poses a health and safety risk to customers, staff or the public; if it would have a serious negative impact on the well-being of others; or if it would cause significant harm to the business.

Conduct: Unlike redundancy, conduct dismissals directly relate to the employee's actions rather than the needs of the business. The considerations for restricting termination in these circumstances are therefore quite different.

One suggestion in the consultation is to restrict conduct as a fair reason for dismissal only to cases of gross misconduct. The challenge is to distinguish circumstances where it would be inappropriate to prevent a fair dismissal (for example, gross misconduct posing risk to others) from those where prioritising the job security of the protected group remains appropriate.

As the consultation notes, particular challenges arise where dismissal follows cumulative lower level misconduct. Also, policy questions remain about how this option should treat conduct which occurred before the protected period, or began before and continued into it.

Capability: Regulating capability dismissals presents quite different challenges. The consultation's examples are both health related and note that pregnancy related symptoms might impact on someone's ability to perform at work, as might adjusting to a revised role on return after maternity leave. Therefore, the risk of a connection between pregnancy or maternity and a capability dismissal is arguably stronger than in the conduct context. However, common scenarios involve general performance issues, which can predate and/or be unrelated to pregnancy, which isn't an example recognised in the consultation.

Redundancy: Although protections already exist in relation to a redundancy dismissal, the consultation looks at whether reliance on redundancy as a potentially fair reason for dismissal should be narrowed down further. The consultation invites views on a more stringent test that would only permit redundancy dismissals of pregnant women and new mothers during the protected period only in exceptional circumstances. It draws an analogy to the proposed fire and rehire rules which impose a very high bar of changes being "required to deal with serious financial difficulties that threaten the future of the business".

Statutory Prohibition: Proposals relating to the potentially fair reason of a statutory prohibition on continued employment are, for understandable policy reasons, more limited. However, it is suggested that one option would be to require employers to offer a woman a suitable alternative role in these circumstances before proceeding to dismissal. In our experience, the most common example of employer's relying on this reason, in general, is where there is a change in an individual's right to work status meaning there would not be a legal alternative position to offer.

SOSR: The breadth of the category of 'some other substantial reason of a kind such as to justify dismissal' inevitably makes general restrictions difficult to frame. The consultation presents a range of options including placing no limits on this reason or allowing dismissals only if continuing employment would seriously harm the business or pose a health and safety risk to customers.

It remains to be seen what the outcome of the consultation will be and what modified fairness tests might look like. What is clear, however, is that dismissing pregnant women or new mothers during the protected period will entail quite complex legal analysis.

When should protection apply?

A key consideration addressed by the consultation is when the enhanced dismissal protections for pregnant women should start. Existing enhanced redundancy protections begin when the employee tells her employer that she is pregnant. Mirroring this would be the most straightforward option for the new regulations. However, the consultation notes that pregnancy may affect someone's attendance or behaviour at work even before they know they are pregnant. Policy considerations may support capturing these circumstances, but this should be balanced against fairness to employers.

As to when protection ends, the recent extension of redundancy protection provides for an 18-month window post-pregnancy to ensure that a mother returning from a full year of maternity leave has an additional six months of enhanced redundancy protection. This applies regardless of whether a full year of maternity leave was taken. The consultation seeks feedback on whether this should be the model for the broader dismissal provisions.

Other parents

Another important topic is whether parents taking other types of family leave should be protected in the same way. A reminder that the current redundancy protection applies to those who have taken adoption leave and six continuous weeks of shared parental leave.

Rather than simply mirroring this approach, the consultation seeks views from parents who have taken adoption leave, shared parental leave or neonatal care as to whether they have personally experienced dismissal or unfair treatment because they have taken a long family leave entitlement as well as general views as to whether parents taking long family leave entitlements are vulnerable in dismissal situations.

Given statutory paternity leave is only two weeks, the consultation indicates that it is not proposed to include paternity leave within the enhanced dismissal protection.

It might be assumed that widening the scope of the protected groups could dilute protections for pregnant women and maternity returners. However, the consultation emphasises that because it is not a question of choosing between employees but allowing dismissal only in certain circumstances, this should not be the case.

Unintended consequences

The consultation lists a range of potential unintended consequences and seeks feedback on these possibilities. These include potential consequences that would disadvantage employees - such as increased hesitancy in recruiting women of childbearing age - to consequences that would impact employers - such as legal uncertainty or increased administrative burden. The consultation seeks views both on what these consequences might be and how they might be mitigated.

What does the future hold?

The consultation remains open until 15 January 2026 and with the government not expressing any preference for any of the range of potential options, it is difficult to predict exactly what future regulations will look like. However, whatever the outcome, employers can expect greater scrutiny of reasons, explorations of alternatives to dismissal and a need for more rigorous procedural fairness.

The full consultation can be found here. Lewis Silkin will be submitting a response to the consultation. Please do get in touch with us if you'd like to contribute.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.