Consultations Launched On Bereavement Leave And Enhanced Dismissal Protections For Pregnant Women And New Mothers

Last week the Government issued consultations until 15 January 2026 on planned reforms set out in the Employment Rights Bill to enhance workplace protections against dismissal for pregnant women and new mothers and introduce a new day-one entitlement to bereavement leave including for early pregnancy loss, expected from 2027.

Bereavement leave

Currently statutory parental bereavement leave and pay is available in the event of the death of a child under the age of 18 or a stillbirth after 24 weeks of pregnancy, and provides for two weeks of paid leave. The Employment Rights Bill will provide for a wider (but unpaid) day-one right to bereavement leave to include early pregnancy loss, with the details to be set out in secondary legislation following consultation. The consultation seeks views on (but does not set out any government preferred option for):

• which relationships or roles should be qualify for bereavement leave (immediate, extended or chosen family and, in respect of pregnancy loss, which individuals in addition to the woman who has lost the pregnancy);
• which types of pregnancy loss should be covered, eg miscarriage, ectopic or molar pregnancy, IVF embryo transfer loss, medical terminations;
• whether the minimum entitlement set out in the Bill (one week's unpaid leave within 56 days of the loss) should be improved in all or some situations (depending on the employee's relationship to the person who has died), whether the period for taking leave should start from the date of knowledge of the death/pregnancy loss, and whether there should be the option to take the time discontinuously;
• the form of notice and how much notice of leave should be given and whether this should differ depending on whether the leave is taken immediately after the death;
• whether evidence should be required (noting that this could be difficult for early pregnancy loss);
• whether it would be helpful for the government to issue guidance on the new right.

Enhanced dismissal protections for pregnant women and new mothers

The consultation reports that, although it is already unlawful discrimination and automatically unfair to dismiss women because they are pregnant or have been on maternity leave, 'unfair treatment persists' and the government is therefore legislating to restrict further the situations in which this protected group can be fairly dismissed.

The consultation seeks to gather evidence on unfair dismissal or treatment experienced by respondents, when this group is most at risk of unfair dismissal or treatment, and the impact of the recently introduced enhanced redundancy protections (giving an extended period of priority over available vacancies). It then asks what restrictions should be placed on employers relying on each of the five potentially fair reasons for dismissal for this group and suggests two options: (i) that employers should have to satisfy an additional hurdle (such as showing continued employment would have a significantly detrimental effect on the business, or a serious negative impact on the wellbeing of others, or pose a health and safety risk to customers/staff/the public – but there is no discussion as to how workable these options would be), or (ii) that the availability of any of the five reasons should be narrowed or removed. Options suggested here include:

• permitting conduct dismissals only for gross misconduct (the government accepts this raises questions around how repeated lower-level misconduct should be dealt with, including where some pre-dates the pregnancy);
• removing the ability to dismiss for poor performance (again this raises issues where the poor performance is a continuation of pre-pregnancy poor performance) or 'some other substantial reason' (SOSR);
• applying an additional hurdle (as discussed above) to conduct, capability and/or SOSR dismissals;
• allowing dismissal for capability, statutory prohibition or SOSR only if there is no suitable alternative role available or one was offered and rejected;
• restricting redundancy dismissals to situations where the employer can show its actions are necessary to avoid severe financial difficulty, or the site or business is being closed or has become insolvent, and where there are no viable alternative roles.

Further questions ask whether there should be a qualifying period for the new protection; whether the protection should start when the employee informs the employer she is pregnant or earlier; whether it should end 18 months after birth or six months after returning to work, and two weeks after early pregnancy loss; and whether it should be extended to other parents (namely those taking adoption, shared parental or neonatal care leave or, once in force, bereaved partner's paternity leave).

The government's stated aim is to ensure that dismissal protections are "meaningfully strengthened ... given the unique risks to job security that this group faces". However, it also recognises the importance of employers being able to dismiss where "continuing employment would have serious consequences for the employer or other staff" and the need to mitigate the risk of workplace tensions or employers choosing not to hire women of child-bearing age as a result of the new protections. Given the plethora of options and associated difficulties that are presented, the consultation document suggests that further thinking is needed to identify whether and what changes to the law are actually needed, particularly as an employer must already show it acted reasonably in all the circumstances in relying on its chosen potentially fair reason as sufficient to justify dismissal, and those circumstances would include the employee's pregnancy/new motherhood. It may be that the real need is to make enforcement of existing rights easier, for example by reversing the burden of proof to require an employer to show that a dismissal is not connected to pregnancy or maternity.

Depending on the final outcome, these changes could severely restrict an employer's ability to manage its workforce and headcount, effectively preventing it from dismissing a pregnant employee or new mother for a reason completely unconnected with their pregnancy/motherhood and potentially increasing workplace division where others are treated less favourably as a result, for example in a redundancy pool situation. At the very least HR processes would become more complex and challenging to administer. The government has said it wishes to strike a fair balance between employee protections and operational needs; employers may wish to respond to this consultation to ensure those operational needs are fully expounded and understood.

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