Employment Rights Act 2025: Enhanced dismissal protections for pregnant women, new mothers and returners from family leave

The Government has now published its response to the consultation on enhanced dismissal protections for pregnant women and new mothers.  When the consultation started, the Government appeared to have no defined policy proposal, but we now have a much clearer picture of what this enhanced protection will look like.  Rather than introducing an outright ban on dismissal during the protected period, the Government is introducing a new, and more demanding, test of fairness for protected employees. 

The current position

Currently, unless a dismissal is for an automatically unfair reason, whether it is fair or not is assessed by looking at the “band of reasonable responses” test. This recognises that different employers could reasonably come to different decisions in a particular scenario and so gives employers a degree of leeway.  

This test is supplemented by protection in redundancy cases which applies from the date a woman informs her employer she is pregnant until 18 months after the birth of the child.  If, during this protected period, the employee's role becomes redundant, the employer is required to offer her any suitable alternative vacancy, ahead of other employees.  Similar rules apply to employees returning from adoption, shared parental, neonatal care and bereaved partners' paternity leave, with slight modifications.  However, these rules do not apply if the role is made redundant and there is no suitable alternative.

Employees are also protected against being dismissed or subjected to a detriment because they have taken maternity or other family leave, and pregnancy and maternity are both protected characteristics under discrimination law.  However, these protections focus primarily on whether there was an unlawful reason for a dismissal, rather than overall fairness. 

The new test of fairness

Under the new proposals, for employees within the protected period, the “range of reasonable responses” test in dismissal cases will be replaced by a proportionality test, mirroring the test in indirect discrimination cases. An employer will have to demonstrate that dismissal was a proportionate means of achieving a legitimate aim. In practice, this will require employers (and, if a claim is brought, an Employment Tribunal) to be satisfied that less severe alternatives were not reasonably available. Such alternatives could include temporary changes to the employee's role or suitable alternative employment. 

The potentially fair reasons for dismissal (conduct, capability, redundancy, statutory prohibition and some other substantial reason) will all remain available. The proposed changes will, however, have a significant impact on the level of scrutiny an Employment Tribunal must apply when deciding whether dismissal during the protected period was fair.

Who will be protected, and for how long?

The protection will be a day-one right, with no qualifying period. For pregnant employees, it will begin when they tell their employer that they are pregnant, then continue throughout maternity leave and for six months after that leave ends. Where a pregnancy ends before 24 weeks and there is no entitlement to statutory maternity leave, the enhanced protection will continue for two weeks after the pregnancy ends. 

The protection will also apply to other types of family leave. Employees taking adoption leave will be protected during their leave and for six months afterwards. Employees taking shared parental leave, neonatal care leave and bereaved partner's paternity leave will also be protected during their leave and for six months afterwards, where they take at least six continuous weeks of the relevant leave. 

The existing redundancy protection rules will also remain in place. 

What does this mean for employers?

Currently, an employer defending an ordinary unfair dismissal claim does not have to establish that dismissal was the only reasonable course available. Under these reforms, that is effectively what employers will need to show if they dismiss a protected employees. 

We expect this to have a particular impact in the following scenarios: 

• capability cases, where employers will need to consider what support, adjustments or temporary measures could enable employment to continue;
• conduct cases, where employers will need to show they have considered alternatives to dismissal;
• restructures and redundancies, where the business case for redundancy will be scrutinised more closely and redeployment and alternative roles will assume further importance; and
• SOSR cases, where employers will need particularly clear evidence of the business objective and why dismissal was a proportionate way of achieving it.  

Although it won't be automatically unfair to dismiss a protected employee, these new rules will set a higher bar and leave much more scope for Employment Tribunals to scrutinise the substance of the employer's decision. Decision-makers will need to be able to explain not only the reason for dismissal, but what alternatives were considered, why they were rejected and why dismissal was ultimately necessary.  This will need to be documented carefully at the time of dismissal.

When will this apply?

The changes are due to come into force in October 2027. 

What should employers do now?

Employers should start considering how dismissal procedures need to be adapted to ensure that consideration of alternatives and overall proportionality is “baked in” for protected employees.  The Government intends to provide guidance, including practical examples, so employers should keep an eye out for this in due course.