Stronger dismissal protections are on the way for pregnant employees and those taking certain types of statutory family leave. The government has now confirmed how it intends to use powers under the Employment Rights Act 2025 to strengthen protections for pregnant employees and new parents.
The changes are significant. Employers will have to satisfy a more stringent test when dismissing an employee during the protected period, as well as showing they have a potentially fair reason.
The government intends the new rules to come into force in October 2027.
What will change?
Currently an employer defending an ordinary unfair dismissal claim must show it had a potentially fair reason for dismissal and that it acted reasonably in treating that reason as sufficient to dismiss. The Employment Tribunal applies the well-known “band of reasonable responses” test.
Under the new rules, the “band of reasonable responses” test will be replaced for employees during the protected period by a proportionality test. If an employer wishes to dismiss an employee during their protected period, they will need to justify dismissal as a proportionate means of achieving a legitimate business aim. That is a familiar defence, reflecting the objective justification test that applies to certain discrimination claims under the Equality Act 2010.
It will require the employer to show that it appropriately explored reasonable alternatives to dismissal, such as changes to duties, additional support or training or redeployment. The employer’s circumstances, including its size and resources, will be taken into account.
Although dismissal during the protected period will remain possible, employers will have a higher hurdle to overcome in demonstrating fairness.
Who will be protected, and for how long?
The enhanced unfair dismissal protection will be a day-one right and, in respect of pregnant employees, will apply once employee has told their employer that they are pregnant. The enhanced protection will continue throughout maternity leave and for six months after it ends.
The protection will also cover employees taking adoption leave, shared parental leave, neonatal care leave and bereaved partner’s paternity leave. For these forms of leave, protection will apply during the leave and for six months after it ends. For shared parental leave, neonatal care leave and bereaved partner’s paternity leave, the post-leave protection will apply where at least six continuous weeks' leave has been taken.
What about redundancy?
The new rules will sit alongside, rather than replace, the existing enhanced redundancy protections.
Currently, employees within the redundancy protected period have priority for a suitable alternative vacancy, where one exists. For maternity and adoption leave, that protection extends to 18 months after birth or placement.
Once the reforms come into force, employers will need to consider both sets of rules when contemplating redundancy during the relevant protected periods.
What does this mean for employers?
The shift from the band of reasonable responses to a proportionality test is significant. After the reforms take effect, employers contemplating dismissal of a pregnant woman or new parent during the protected period will need to clearly identify the legitimate business aim they are seeking to achieve, consider reasonable alternatives to dismissal and retain evidence of their decision making.
There is time to prepare as the reforms are not expected to come into force until October next year. The government has also promised further guidance, including practical examples, together with guidance from Acas.
In due course, employers will want to review their redundancy, capability and disciplinary procedures, update family leave guidance and ensure managers understand when the enhanced protection applies. In the meantime, the detail of the regulations and accompanying guidance will be important in understanding exactly how the new proportionality test will operate in practice.
If you'd like some guidance on the latest employment law reforms, get in touch with our employment team, or explore our Employment Rights Act hub.
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