Employers will need to justify dismissals of pregnant employees and new mothers as proportionate from October 2027

Background

The Employment Rights Act 2025 (the Act) introduces enhanced protection from dismissal for pregnant women and new mothers. The government has now published its response to the consultation on how these protections will work.

Currently, an unfair dismissal claim is judged by asking whether dismissal fell within the "band of reasonable responses" open to a reasonable employer.

Enhanced redundancy protection already requires employers to offer a suitable alternative vacancy, where one exists, during pregnancy and for 18 months after birth.

What is changing

Regulations under the Act will introduce a proportionality test for the dismissal of employees within the scope of the new protection, in place of the band of reasonable responses test, where dismissal takes place during their protected period. This is the "objective justification" test used in certain discrimination claims under the Equality Act 2010. The employer must show that dismissal is a proportionate means of achieving a legitimate aim, which will ordinarily mean showing that less severe alternatives were not reasonably available.

All five potentially fair reasons for dismissal will remain. Dismissal could still be justified where, for example, continued employment would pose a health and safety risk or have a significantly detrimental effect on the business. The regulations will not specify how the test operates, but guidance will.

The protection will be a day one right, starting when an employee tells her employer, in writing or verbally, that she is pregnant. It will last throughout maternity leave and for six months afterwards, or for two weeks where a pregnancy ends before 24 weeks.

The government preferred this to the 18 months from birth favoured by most respondents, to avoid making it disproportionately difficult to address capability or conduct issues long after an employee's return. Mothers taking the full 52 weeks' leave will still be protected for 18 months from birth, and the existing redundancy protections will remain.

Equivalent protection will apply from the first day of adoption, shared parental, neonatal care and bereaved partner's paternity leave. For the last three, the six months after leave applies only where at least six continuous weeks are taken.

The regulations are intended to come into force in October 2027.

Learning points for employers

The new protection will sit alongside, rather than replace, the existing enhanced redundancy protection. Where a redundancy dismissal takes place during the new protected period, employers will need to offer any suitable alternative vacancy (where one exists) and also show that dismissal was proportionate, which is likely to mean showing that redeployment or other alternatives were not reasonably available.

The two protections will not always end at the same time. Redundancy protection runs for 18 months from birth or placement, whereas the new protection ends six months after leave. An employee who returns early from maternity or adoption leave may therefore fall outside the new protection while remaining within the redundancy protection, so employers will need to keep track of both periods.

Further detail is expected in the regulations and supporting guidance ahead of implementation in October 2027.

For more information or advice, please get in touch with Lucy Cinnamond in our Employment team.