The Employment Rights Bill will make it unlawful to dismiss pregnant women, mothers on maternity leave and mothers who return to work for at least six months after they return to work, expect for specific circumstances.
The government has launched a consultation to seek the views of the public, businesses and interest groups on how this should work in practice.
The consultation focuses on:
- How existing fair reasons for dismissal may be limited for pregnant women and new mothers;
- What the ‘specific circumstances’ where a dismissal may be permitted are;
- When those protections should start;
- Any potential unintended consequences and how to mitigate against any of these; and
- Any other necessary detail, such as how best to support businesses.
Existing Position
Discrimination on the grounds of pregnancy and/or maternity is prohibited by the Equality Act 2010. Employees are also protected from redundancy within a protected period after they notify their employer of the pregnancy, until 18 months from the date of the baby’s birth. In this period, an employer must offer that job to the protected employee as a priority. This is higher protection than other employees, whose suitability for alternative roles need only be considered by the employer, with no obligation to offer them that role.
The prohibition against discrimination should cover dismissals on the grounds of pregnancy and/or maternity, and the redundancy protection does aid employees in these situations, but interest groups have argued that this is not sufficient and that dismissals connected with pregnancy still occur despite this protection.
Otherwise, these employees have the same protections as all others, including the normal potentially fair grounds of dismissal: conduct, capability, redundancy, statutory prohibition or some other substantial reason.
This is higher protection than other employees, whose suitability for alternative roles need only be considered by the employer, with no obligation to offer them that role.
Employment Rights Bill consultation proposals
Scope of protection
The consultation first considers how the 6-month protection window for new mothers will apply. The government have not yet decided whether this should be 18 months from the birth of the child or six months from the return to work (being the end of any maternity leave), or even 6 months from the return to work no matter the child’s age (e.g. if a mother returns to work after taking maternity leave then an extended career break.
The consultation also covers what protection may be afforded to other groups, such as women who are not entitled to maternity leave, e.g. where they have experienced a miscarriage, those taking shared parental leave, neonatal care leave or bereaved partner’s paternity leave.
Proposal 1 – A new general test for fairness
This would set a stricter standard for fairness when relying on one of the potentially fair grounds for dismissal, in relation to the dismissal of a pregnant woman or new mother.
The example given is that in order to use one of the fair reasons for dismissal, the employer would also need to show that the dismissal was ‘necessary’, e.g. to avoid serious harm to the business or other staff.
While this proposal appears simple, defining that stricter standard, or, for example the ‘serious harm’ is not straightforward. Most employers would say that they already only dismiss an employee where it is necessary, but any additional list of factors that amount to a dismissal being necessary may be overly restrictive.
Proposal 2 – Narrowing the scope and/or removing some of the fair dismissal reasons
This would narrow the scope of potentially fair reasons for dismissal or potentially remove some of them altogether.
The consultation asks for feedback on each of the fair reasons for dismissal, and whether they could be narrowed or removed. This approach would be significantly more complicated, not only for the government to implement but also for individuals and employers to understand.
The consultation gives examples for ways in which each fair reason could be limited and also recognises that any limit placed on these reasons would have wider consequences. The government have given a number of examples to illustrate how the protection may work, and some of the unintended consequences they foresee.
Going forward
The consultation closes on 15 January 2026 and any changes are not expected to take effect until 2027. The government has not expressed a preference for any of the proposals and recognises that any new protections will likely have unintended consequences. The consultation explicitly seeks input on how to balance protections with support for businesses, but the areas of compromise and potential delay are difficult to predict.
Employers will need to consider these new rights together with enhanced protection granted for shared parental and adoption leave, likely needing great care in tracking the timelines of protections across their workforce.
Please do get in touch if you would like to contribute to Clarkslegal’s response to the consultation, or if you would like our assistance in preparing your business for the changes in the Employment Rights Bill.
