Employment Rights Bill consultations: Enhanced dismissal protections for pregnant women and new mothers

Each year up to 74,000 women are sacked, constructively dismissed or made redundancy while pregnant, on maternity leave or within a year of their return according to research by the campaign group Pregnant then Screwed. Almost half (49.5%) of pregnant employees, those on maternity leave or returning said they had a negative experience at work and 35.9% said they felt sidelined or demoted. The government intends to tackle this through the Employment Rights Bill (ERB). A recently launched consultation gives us an idea as to how this could work in practice and an opportunity to shape the rules.

The ERB builds on upon existing protections that prioritise pregnant women and new mothers (for at least six months after they return to work) for redeployment opportunities in redundancy situations. Once in place the new ERB rules will prevent any dismissal, except in certain specific circumstances. These are the focus of this consultation which will shape the secondary legislation which will contain the detailed rules. 

The consultation focuses on:

1. What those ‘specific circumstances’ allowing dismissal should be;
2. When the protections should start;
3. Any potential unintended consequences and how to mitigate these, for example an increased hesitance to recruit women of childbearing age or additional administrative burdens;
4. How to best support businesses through the change; and
5. Who should be protected and for how long.

Specific circumstances’ allowing dismissal

Currently, there are five potentially fair reasons for dismissal conduct, capability, redundancy, statutory prohibition (there would be a breach of the law) and some other substantial reason.

The consultation considers two options for the circumstances allowing dismissal:

Option 1: Introduce a new general test for fairness

The five potentially fair reasons for dismissal would still be available, but a new stricter standard would need to be met before dismissing. An example given is that employers would have to show not only one of the five fair reasons, but also that the dismissal was ‘necessary’ to avoid serious harm to the business or other employees. Given the aim is to meaningfully strengthen the protection from dismissal, we can expect that there would be a fairly high bar set in this new test.

Option 2: Narrow the scope of and/or remove some of the fair dismissal reasons

Several examples are given around how these options might work in practice:

1.    Conduct

It is suggested that dismissal is only permitted for gross misconduct. However, challenges around repeated lower-level misconduct along with how to deal with misconduct that begins or ends outside of the protected period are acknowledged. We are also asked whether employers should be able to dismiss for health and safety risks, if continued employment would result in a serious negative impact on the wellbeing of others or if it causes significant harm to the business.

2.    Capability

The government acknowledges that health and pregnancy related factors can affect an employee’s ability to perform at work. Therefore, questions explore whether capability dismissals should be prohibited or:

• subject to the same type of restrictions set out for conduct dismissals such as health and safety risks,
• only allowed where there is no suitable alternative role, or
• allowed where the employer could clearly show the employee will not be able to do their job after the end of the protected period. This final option is likely to come with a high bar for employers to meet.

3.    Redundancy

There are already protections in place to protect pregnant women and new mothers in redundancy situations. The consultation considers if this can strengthened. The current requirement to offer any suitable alternative role should remain but, if that is not possible, then a fair dismissal on grounds of redundancy should only be allowed if there is a pressing need, such as:

• Business closure (e.g. company ceases trading permanently).
• Site closure (e.g. shutting down a regional office or factory).
• Insolvency or bankruptcy.
• Actions taken (e.g. restructuring the business or dismissing employees) to avoid severe financial difficulty.
• Where there are no viable alternative roles available, even after significant efforts to redeploy.

4.    Statutory Prohibition

The consultation suggests that this reason for dismissal remains but with the requirement to offer a suitable alternative role before dismissal can take place.

5.    Some Other Substantial Reason (SOSR)

The consultation asks questions to determine how and when this should be applied to pregnant women and new mothers.

When should the protection apply

Existing enhanced redundancy protections begin when the employee informs the employer that they are pregnant. The consultation notes that pregnancy may affect someone's attendance or behaviour at work even before they know they are pregnant and seeks views on whether protection should start when someone becomes pregnant, becomes aware they are pregnant, tells their employer they are pregnant or some other time.

The consultation suggests that the protection should apply for an 18-month period post pregnancy so that a mother returning from a full year of maternity leave will benefit from an additional 6 month’s protection. However, it does ask whether the protection should end six months after a return to work which might reduce the protection where someone returns early.

Current dismissal protections also apply to employees on adoption leave or have had six continuous weeks of shared parental leave. We are asked to give a view on whether the new ERB protections should also extend to these leaves too, as well as those taking Neonatal Leave Care or Bereaved Partner’s Paternity Leave (once it is in force). Individuals who have taken these leaves are asked to feedback on whether they have experienced any detriment after taking the leave.

Summary

The consultation remains open until 15 January 2026 and offers us an opportunity to influence the shape of new legislation. Boyes Turner intend to submit a response to the consultation. Please do get in touch with us if you’d like to contribute or if you have any employment questions.

Government has also made clear that it intends to review all parental leaves, so we may see more developments in the area even once these rules are in place.