The Employment Rights Bill – Consultation on enhanced dismissal protections for pregnant women and new mothers

Terminology

For the purposes of the consultation, a “new mother” is defined as someone who has “given birth in the last 18 months”.

The consultation also makes it clear that it is “inclusive of all individuals who experience pregnancy”, so will include, for example, those who may identify as trans men or non-binary. Therefore, the words ‘pregnant woman’ and ‘new mother’ are intended to cover any person who is or was pregnant.

Possible circumstances in which dismissal may still be fair

The consultation recognises that, in strengthening protections for pregnant women and new mothers, it is “…important to preserve the ability to dismiss in cases where continuing employment would have serious consequences for the employer or other staff – striking a fair balance between employee protections and operational needs.”

It goes on to recognise the possibility of unintended and unwanted consequences of increasing protection too far, such as a possible reluctance on the part of employers to hire women of child-bearing age.

It therefore seeks views on two key options.

The first would be to introduce “…a new general test of fairness”. The idea here is that it would still be permissible to dismiss a pregnant woman or new mother for one of the existing fair reasons for dismissal (conduct, capability, redundancy etc.) but there would be a new stricter standard introduced which an employer would need to meet when relying on that reason. Examples given include that an employer might have to demonstrate that they are dismissing for one of the existing fair reasons but also that the dismissal is “…necessary to avoid serious harm to the business or other staff” or that “continuing the employment of the pregnant woman or new mother poses a health and safety risk to customers, staff, or the public”.

The second would be to remove or limit some of the existing potentially fair reasons when dealing with the dismissal of pregnant women or new mothers. Examples given include limiting conduct dismissals to gross misconduct only and/or removing capability or some other substantial reason dismissals entirely. The consultation goes on to look at each of the five potentially fair reasons and poses questions about how they might be changed or limited. For example, in relation to redundancy, there is a question as to whether the existing protections should be widened to only allow redundancy of pregnant women and new mothers in exceptional circumstances, such as “where the employer is

experiencing or imminently facing financial difficulties so severe that the dismissal cannot reasonably be avoided”. If adopted, this would be similar to the test proposed under the new ‘fire and re-hire’ provisions of the ERB.

Should these new protections apply from day one of employment?

The consultation seeks views on whether making these new protections apply from day one could place too great a burden on employers. It suggests the possibility of introducing a qualifying period (giving the example of 3 – 9 months), akin to a probationary period, before the protections would kick in.

However, at the same time, it raises the argument that delaying protection could leave an employee who discloses pregnancy early in her employment vulnerable to unfair treatment.

The protected period

The document also addresses the question of when the period during which these new protections apply should start and end.

The strong indication is that it is likely to start from the point at which the employee advises her employer of the pregnancy. To do otherwise could mean that employers become liable for claims of unfair dismissal when they are unaware of the circumstances giving rise to such claims. However, the consultation does not rule out the possibility of an earlier start to the protected period.

Where there is entitlement to maternity leave, the two options for when the protected period should end are either 18 months from birth or six months from return to work. It may be that the former will be preferable to ensure that every employee benefits from the same period of protection, regardless of when they may choose to return to work.

Where there is no entitlement to maternity leave, for example in cases of miscarriage, the suggestion is that the protected period may end two weeks after the end of the pregnancy.

Miscellaneous

The consultation also seeks views on the extent to which the protections should be expanded to cover others (such as those taking adoption leave or shared parental leave), how best to make sure employees are aware of the proposed enhanced protections, how the Government can support businesses and what unintended consequences might result from the proposals.

The consultation closes on 15 January 2026, with the measures, once decided upon, due to be implemented in 2027.