The Government has opened its consultation on enhanced dismissal protections for pregnant women and new mothers – the first consultation under its Make Work Pay Plan.
It is already unlawful to discriminate against an employee because of their pregnancy or maternity under the Equality Act 2010, with automatic unfair dismissal and enhanced redundancy protections also in place under The Maternity and Parental Leave etc. Regulations 1999 to offer further layers of protection.
Despite these existing protections, there remains a strong demand for reform on the basis that the law does not go far enough and discrimination in this context continues to be both prevalent and difficult to challenge in practice. In response to this, the Government has initiated this consultation to gather and consider public and professional group views on how the law can be more proactive and effective in tackling pregnancy and maternity discrimination.
What could reform look like?
Under the Government’s proposals, dismissal protections for pregnant women and new mothers (defined in the consultation as someone who has ‘given birth within the last 18 months’) would be strengthened further. The dismissal of a pregnant woman or a new mother would be unfair by default, unless the employer can demonstrate that the dismissal falls within a limited set of specified and likely narrow exceptions.
The primary purpose of this consultation therefore to consider what the scope of those exceptions should be – that is, the specific circumstances in which an employer could still be permitted to fairly dismiss a pregnant woman or new mother.
The Consultation puts forward the following two options:
- Option 1: A new stricter test for fairness
The first proposed option is to introduce a new stricter test for fairness when the relevant employee is pregnant or a new mother. Employers would still need to demonstrate one of the established potentially fair reasons for dismissal but would also be required to show that the decision meets a stricter standard of fairness. In practice, this could mean that an employer must also demonstrate that the dismissal is necessary, for example (as suggested in the consultation) to prevent serious harm to the business or to other staff.
- Option 2: Narrow the scope of and/or remove some of the potentially fair dismissal reasons
This approach would limit, or even remove, some of the potentially fair reasons for dismissal available to employers when the employee is pregnant or a new mother.
The Consultation notes that this could entail, amongst other examples, the Conduct ground for dismissal being restricted so that dismissal is only permitted in cases of gross misconduct, such as theft or violence, rather than for minor conduct issues. The Consultation also identified that the Some of Substantial Reason ground could be removed entirely. This would mean that dismissals based on factors such as a breakdown in working relationships or conflicts of interest would no longer be permissible where the employee is pregnant or a new mother.
When would the enhanced protections start and end?
The consultation suggests that the protected period could start once the employee notifies their employer of the pregnancy, recognised as ‘the most familiar and straightforward approach’. However, it also leaves open the possibility that the protected period could begin earlier, potentially even before the employer is aware of the pregnancy, to reflect that women may experience symptoms of a difficult pregnancy before they themselves know they are pregnant.
Where an employee is entitled to maternity leave, the consultation outlines two possible end points for the protected period. The first, which aligns with the existing enhanced redundancy protections, would provide protection for 18 months from the date of birth, ensuring that all new mothers receive the same duration of protection regardless of when they return to work. The alternative is to end the protection six months after the employee returns to work, but the Government notes that the 18-month model may offer greater clarity and fairness by avoiding variation in protection based on individual return-to-work timing.
What does this mean for employers?
Although these proposals are still only subject to consultation, and therefore nothing definitive has been decided, one thing is clear: stronger dismissal protections for pregnant employees and new mothers are likely on the way.
Businesses need to be aware of this and take proactive steps now to ensure legal compliance without compromising commercial continuity. To do this, employers can take the following practical steps:
- Train managers and HR regularly on pregnancy and maternity rights and upcoming reforms.
- Involve HR early to ensure fair, well-documented decisions.
- Keep clear records to evidence fairness and compliance.
- Plan and think ahead with flexible working arrangements to support staff and continuity.
What happens next?
The consultation will remain open until 15 January 2026, giving interested parties the opportunity to share their views on the proposals. Once it closes, the Government will review the responses and will publish its formal response.
Any reforms that come because of this consultation will likely be introduced through secondary legislation under the Employment Rights Bill, and it is anticipated that they will come into force in 2027.
How can we help?
If your business needs support preparing for and staying ahead of compliance with the anticipated changes likely to come with the passing of the Employment Rights Bill, please contact our leading Employment Law Team at Curzon Green today.