Consultation response confirms stronger dismissal protections for pregnant employees and new parents

As part of Labour’s Plan To Make Work Pay, the government pledged to “strengthen protections for pregnant women and new mothers”. However, limited information about what this enhanced protection might look like was contained in the Employment Rights Act 2025.

In October last year, the government launched a consultation to help it determine how the enhanced protection should operate, who should be protected and how long protection should last after an employee returns from maternity leave. The response to this consultation has now been published, which means employers have a much clearer picture of what the changes, which come into force in October 2027, will look like. In particular, it confirms: 

• that a new legal test will be applied to determine the fairness of a dismissal during the protected period (the period during which pregnant employees and new parents are offered additional protection against dismissal); 
• when the protected period will start and end; and
• that the protection is not restricted to mothers – rather, other parents, including those returning from adoption leave, shared parental leave, neonatal care leave and bereaved partners’ paternity leave will benefit from enhanced protection.

The changes outlined in the response represent a significant widening of the scope of protection currently afforded to employees.

How is the unfair dismissal regime changing?

At the moment, dismissing an employee for a reason connected to pregnancy, childbirth or the exercise of statutory maternity leave rights will be automatically unfair, but an employer may otherwise fairly dismiss a pregnant woman or new mother if one of the five potentially fair reasons for dismissal contained in the ordinary unfair dismissal framework applies and a fair process is followed.

In addition, an employee who is pregnant or employees on certain types of family leave currently benefits from enhanced protection if their role is redundant, which entitles them to be offered any suitable alternative vacancy where one is available (ahead of any other employee). For those taking maternity leave and adoption leave, this enhanced redundancy protection lasts for 18 months after the birth or placement of the child. 

A new legal test: proportionality rather than the ‘band of reasonable responses’ 

We now know from the consultation response that the government intends to change the test which the Employment Tribunal will need to apply to determine whether a dismissal during the protected period is fair. The ‘band of reasonable responses’ test which currently applies in unfair dismissal cases will be replaced with the stricter ‘objective justification’ test which is already used to determine claims of indirect discrimination. This means that, where an employee is dismissed for one of the five fair reasons during the protected period, instead of needing to show that they acted within the band of reasonable responses in dismissing the employee, the employer will, instead, need to demonstrate that the dismissal of the protected employee was a ‘proportionate means of achieving a legitimate aim’. 

The consultation response explains that this means that an employer will need to:

• identify the grounds for dismissal, which must be one or more of the five fair reasons; and
• identify the legitimate business aim that it is furthering by dismissing the employee; and
• demonstrate that dismissal is a proportionate way of achieving that aim – which will in effect mean being confident that there is no less discriminatory way (e.g. a warning, redeployment or changes to duties) of achieving that aim.

The government states in the response that it does not intend to set out in regulations how the test should operate, but that guidance (to be developed in conjunction with Acas) will be provided to employers as to how they should approach compliance in practice. To this end, the government has indicated that the size and nature of the employer’s organisation will be relevant in determining whether a dismissal is proportionate. It is also clear that employers will be expected to consider how the employee could be supported to remain in work (for example through workplace adjustments, temporary measures or in a suitable alternative role) before dismissing the employee.

When does the enhanced protection period begin and end?

The response confirms that this enhanced protection from dismissal will be a day one right, with no qualifying period, to align with existing automatic unfair dismissal and pregnancy and maternity discrimination protections. This means protected employees will not need six months' service (the qualifying period for unfair dismissal from 1 January 2027) to be protected. 

Protection will begin when an employee informs their employer — either in writing or verbally – that they are pregnant. This aligns with the existing redundancy protections and means the new test will not apply if the employer dismisses a pregnant employee before they knew the employee was pregnant. 

The enhanced protection will continue from that point until six months after the end of the employee’s maternity leave. In circumstances where a pregnancy ends before 24 weeks and the employee is therefore not entitled to statutory maternity leave, enhanced dismissal protections will continue for two weeks following the end of the pregnancy.

The government believes that having the fixed period for protection run from the end of the applicable family leave (as opposed to running for a fixed period from birth) balances the interests of employees and employers by ensuring that people receive enhanced protection during the period following their return when they are most vulnerable, no matter how short or long their leave is, without making it disproportionately difficult for employers to address legitimate concerns long after the employee’s return.

However, it is important to note that the existing period for the enhanced redundancy protection, outlined above, remains unchanged. This means that a protected employee may be entitled to benefit from the enhanced redundancy protection for a longer period than the enhanced unfair dismissal protection. Employers may therefore need to track two different protected periods depending on the length of the employee’s leave. 

What other types of leave are covered by this new protection?

The enhanced protection will be extended beyond maternity leave to include eligible employees taking: 

• Adoption leave: protection will apply from the first day of leave and for six months after it ends; and
• Shared parental leave, neonatal care leave and bereaved partner’s paternity leave: protection will apply from the first day of leave, with the 6-month post-leave protection applying where at least 6 continuous weeks of leave has been taken.

Looking ahead

Although it will still be possible for employers to fairly dismiss a protected employee during the protected period, the proportionality test represents a higher bar for employers to meet to demonstrate that a dismissal was fair. Employers will need to record and consider not only the reasons for dismissal and the process followed, but will also need to demonstrate why dismissal was a proportionate step and that other less discriminatory options were not appropriate.

We have been advising employers across all sectors on the impact of the new Employment Rights Act 2025. If we can help your organisation with these changes or with any other aspect of the new Act, please contact me or get in touch with any other member of the Burges Salmon Employment team.

Want to know more about the Employment Rights Act 2025? Our hub offers many practical employer resources.