Pregnant employees and new parents are set to receive stronger protection against unfair dismissal under the Employment Rights Act 2025. From October 2027, employers will have to demonstrate that dismissal is objectively justified, rather than simply falling within the range of decisions a reasonable employer might make. The changes could make a considerable difference to workers facing dismissal during pregnancy, maternity leave or their return to employment. But how far do the protections really go, and where do weaknesses remain?
These reforms are unquestionably significant, but workers should be cautious about assuming they eliminate the risk of unfair dismissal. The legislation strengthens legal protections and increases the obligations placed on employers, yet the effectiveness of those rights will ultimately depend on enforcement through employment tribunals and the willingness of employers to adopt fair workplace practices.
By Maria Camara
A woman tells her employer that she is pregnant. Until then, her performance has attracted little criticism. Months later, perhaps after returning from maternity leave, problems begin to emerge. Her duties have changed. There are questions about her availability, her commitment or her ability to meet the demands of the job. Eventually, she finds herself facing dismissal.
Was the decision genuinely about her performance? Would the employer have acted in the same way had she not become a mother? And, perhaps more importantly, was dismissal really necessary?
These are questions which employment tribunals already encounter. They are also questions which will become more important under the Government’s proposed changes to the law.
On 22 October 2026, the Government published its response to a consultation on enhanced dismissal protections for pregnant women and new mothers. The response sets out how powers contained in the Employment Rights Act 2025 are intended to be used.
The central change is significant. Employers will no longer be able to defend an ordinary unfair dismissal claim involving an employee within the new protected period simply by demonstrating that their decision fell within the range of responses open to a reasonable employer. They will face a more demanding test.
They must demonstrate that dismissal was a proportionate means of achieving a legitimate aim.
The new provisions are intended to take effect in October 2027. Regulations are still needed to bring the detailed protections into operation.
That distinction matters. Employees already have important pregnancy and maternity rights, but the additional dismissal test described here is not yet in force.
Why the existing law has not been enough
Pregnancy and maternity discrimination are already unlawful. The Equality Act 2010 prohibits unfavourable treatment because of pregnancy, pregnancy-related illness during the statutory protected period, or maternity leave.
Under existing employment legislation, dismissal because of pregnancy or the exercise of maternity rights can also amount to automatically unfair dismissal. Employees do not need two years’ service to bring such a claim.
There are additional rules governing redundancy. Since April 2024, pregnant employees and those taking qualifying family leave have enjoyed extended protection where their jobs are at risk. If a suitable alternative vacancy exists, an employer must offer it to an eligible protected employee as a priority.
Yet problems remain.
The existing legislation does not prevent every dismissal that occurs during pregnancy or shortly after maternity leave. An employer may argue that the dismissal concerns capability, conduct, redundancy or another legitimate matter unrelated to pregnancy.
Such explanations may be entirely genuine. They may also conceal discrimination or reflect a failure to consider the employee’s circumstances properly.
It is not always straightforward to establish which is the case.
In its 2026 State of the Nation survey, the campaign organisation Pregnant Then Screwed reported that nearly three-quarters of participating mothers had experienced pregnancy or maternity discrimination at work. The survey drew on responses from more than 5,000 women. More than one in three who reported discrimination said they had left their jobs.
Those findings are disturbing. They also demonstrate why having rights written into legislation is not necessarily enough.
Workers must know those rights, be able to challenge employers who disregard them and have realistic access to justice.
A different test for dismissal
To understand the importance of the proposed changes, it is necessary to look at how ordinary unfair dismissal currently operates.
An employer seeking to justify dismissal normally has to establish one of five potentially fair reasons:
- Capability or qualifications
- Conduct
- Redundancy
- Statutory prohibition
- Some other substantial reason
The tribunal then considers whether dismissal was reasonable in all the circumstances.
Traditionally, this involves what lawyers call the band of reasonable responses test. A tribunal does not simply ask whether it would have made the same decision. Instead, it considers whether dismissal fell within the range of decisions that a reasonable employer could have made.
This gives employers considerable discretion.
Two reasonable employers might respond differently to the same problem. One might issue a final written warning. Another might dismiss. Depending on the circumstances, both decisions could fall within the permitted range.
The Government intends to replace that approach with an objective justification test for dismissals falling within the new protected period.
This test is familiar from parts of discrimination law under the Equality Act 2010.
An employer must identify a legitimate business objective and demonstrate that dismissing the employee was a proportionate means of achieving it.
The employer will ordinarily need to show that reasonably viable, less severe alternatives were not available.
That changes the nature of the argument.
It will no longer be sufficient simply to say that dismissal was a decision another reasonable employer might have reached. There will have to be a convincing explanation of why that decision was justified in the particular circumstances.
Consider an employee returning from maternity leave who is struggling with aspects of a changed role.
Under the proposed test, relevant questions might include whether appropriate training was provided, whether temporary adjustments could have been made and whether suitable alternative duties were available.
An employer who moved directly to dismissal without seriously considering such options could find the decision more difficult to defend.
This does not mean that employers must create jobs which do not exist or continue employment regardless of the consequences. The proportionality test will take account of the employer’s circumstances, including the size and resources of the organisation.
Nevertheless, it should require a more searching examination of the dismissal decision.
There is an important legal distinction here. The proposed objective justification test concerns the fairness of dismissals for potentially legitimate reasons. It does not provide a defence to a dismissal which is itself unlawful pregnancy or maternity discrimination.
An employer cannot make direct pregnancy discrimination lawful merely by describing it as commercially convenient.
Employers will retain the right to dismiss
Some campaigners had wanted the Government to go further by removing certain potentially fair reasons for dismissal during pregnancy and maternity.
That has not happened.
All five existing reasons will remain available.
Conduct, capability, redundancy, statutory prohibition and some other substantial reason may still provide grounds for dismissal, provided the employer can satisfy the stricter legal requirements.
There are circumstances where dismissal will plainly remain a possibility.
Serious misconduct, a genuine inability to perform essential duties or an unavoidable statutory prohibition may provide legitimate grounds. The new framework is not intended to make employees immune from dismissal.
But the employer’s justification will face closer examination.
A capability dismissal, for example, ought to be approached differently where pregnancy-related circumstances, a prolonged absence or a return from maternity leave have affected the employee’s ability to demonstrate performance.
The employer will need to consider what can reasonably be done to maintain the employment relationship.
The same principle applies to redundancy. Although a business may have genuine economic difficulties, the employer will have to justify dismissal under the new test as well as comply with the separate statutory redundancy safeguards.
The distinction between an employee’s actual conduct or capability and difficulties arising from pregnancy or maternity leave will therefore become particularly important.
For trade union representatives, this should provide additional grounds on which to challenge questionable disciplinary and capability decisions.
Protection from the first day of employment
One welcome aspect of the proposals is that the enhanced dismissal protection will be a day-one employment right.
There will be no qualifying period of service.
This is separate from the Government’s wider reform of ordinary unfair dismissal rights. Under the Employment Rights Act 2025, the general qualifying period is due to fall from two years to six months on 1 January 2027.
Pregnancy and maternity protections already include rights which apply without a minimum period of employment. The new enhanced test will follow that principle.
There is, however, an important qualification about when the additional protection begins.
The Government has decided that it will start when an employee informs her employer that she is pregnant.
That notification may be given verbally or in writing.
An employee does not have to submit a formal letter to trigger the proposed protection, although keeping written confirmation would be sensible. It could become important evidence if there were later disagreement about when the employer knew.
The requirement to notify should not be confused with the separate Equality Act framework, under which pregnancy and maternity discrimination protection already exists.
How long will employees be protected?
For pregnant employees entitled to maternity leave, the enhanced protection will begin when the employer is informed of the pregnancy and continue throughout maternity leave.
It will then last for six months after maternity leave ends.
An employee taking the full 52 weeks of statutory maternity leave would therefore receive protection for approximately 18 months after the child’s birth.
But the Government has deliberately rejected a universal 18-month period for this new dismissal protection.
An employee returning after a shorter period of maternity leave would receive six months of additional protection after that leave ended, rather than automatically remaining covered by the new test until the child reached 18 months.
The distinction is not insignificant.
A mother returning after three months of maternity leave may still face considerable difficulties connected with childcare, feeding arrangements, disrupted sleep or adjustment to her previous working routine.
Those problems do not necessarily disappear six months after her leave ends.
Indeed, the consultation revealed considerable support for longer protection.
Of the 843 respondents who answered the relevant question, 77% favoured protection lasting 18 months from birth, compared with 19% supporting six months following the return to work.
The Government nevertheless selected the shorter post-leave period, arguing that it provided stronger protection during the period of greatest vulnerability without unduly restricting employers in dealing with later performance or conduct issues.
That is a political and practical judgement which deserves scrutiny.
It is also important not to confuse these proposals with existing redundancy protection.
The current enhanced redundancy protections, which generally extend for 18 months after birth or adoption placement for the relevant eligible employees, will remain in place.
The new six-month post-leave period concerns the additional protection against dismissal more generally. It does not remove the longer statutory redundancy safeguards.
Pregnancy loss and the two-week rule
One of the less satisfactory aspects of the proposals concerns pregnancy loss.
Where a pregnancy ends before 24 weeks and the employee is not entitled to statutory maternity leave, the enhanced dismissal protection will continue for only two weeks after the pregnancy ends.
The Government has chosen to align this period with the existing redundancy protection rules.
It acknowledges that consultation respondents raised concerns about the physical and psychological effects of pregnancy loss, including the possibility of continuing disadvantage at work.
Those concerns are well founded.
An employee who has experienced a miscarriage may require time away from work, medical treatment or adjustments when returning. Recovery is not governed by a convenient timetable.
Two weeks is a very short period in which to address what may be a profoundly difficult experience.
The expiry of this specific enhanced protection would not extinguish other employment rights. Depending on the facts, discrimination law, sickness absence protections and other statutory provisions may remain relevant.
Nevertheless, the Government could reasonably have adopted a more generous approach.
A trade union should not have to argue that an employee deserves compassion because her circumstances happen to fall within a particular statutory category. Fair treatment should be expected.
Adoption, shared parental and other family leave
The proposals are not limited to employees who have personally experienced pregnancy.
The Government intends to extend the enhanced dismissal protections to employees taking adoption leave, shared parental leave, neonatal care leave and bereaved partner’s paternity leave.
The arrangements will differ according to the type and duration of leave.
Employees taking adoption leave will be protected from the first day of that leave, with protection continuing for six months after it ends.
For shared parental leave, neonatal care leave and bereaved partner’s paternity leave, protection will also begin on the first day of the relevant leave.
However, the additional six-month protection after leave ends will apply only where the employee has taken at least six continuous weeks of the qualifying leave.
Someone taking a shorter period will receive the enhanced protection while on that leave but not the extra six-month period afterwards.
Ordinary paternity leave is not included in this particular enhanced dismissal scheme, although separate legal protections continue to apply.
This extension is welcome.
Family responsibilities do not fall exclusively upon mothers. Adoptive parents, those sharing parental leave and parents dealing with the serious illness of a newborn child may experience similar difficulties when returning to employment.
It is right that dismissal protections should recognise those circumstances.
Will the new rules make a difference in practice?
Much will depend upon the way the provisions operate once implemented.
The Government does not intend to prescribe every detail of the proportionality test in regulations. Instead, it plans to support implementation through guidance, including material produced by Acas.
Tribunal decisions will also be important in establishing how the test is applied.
There will inevitably be arguments about what constitutes a legitimate business aim, which alternatives an employer should have considered and when dismissal becomes a proportionate response.
The circumstances of the employer will matter.
A large organisation with numerous departments, extensive human resources support and a range of possible alternative posts may be expected to examine options unavailable to a small employer with only a handful of staff.
But proportionality must not become an excuse for accepting vague assertions about business difficulties.
Employers should be expected to produce evidence.
What was the problem? When was it identified? What support was offered? Were alternatives seriously examined? Was the employee consulted? Was dismissal genuinely necessary?
These questions should be central to any fair dismissal process.
There is also a danger that employers seeking to avoid the new protections may alter the way they approach recruitment, fixed-term employment or performance management.
Such concerns were raised during the consultation itself.
The possibility of discrimination being pushed into less obvious forms makes effective enforcement especially important.
What trade union representatives should look for
For unions, the proposed changes should strengthen the practical arguments available when representing members facing disciplinary action, capability proceedings or redundancy.
A representative should already be examining the employer’s reasons, the evidence supporting allegations and whether the correct procedures have been followed.
The new framework will make the examination of alternatives particularly important.
Where an employee is pregnant or has recently returned from qualifying family leave, a union representative should consider whether the employer has properly explored adjusted duties, additional training, temporary support, alternative employment or other realistic measures.
The timing of decisions may also be revealing.
Were concerns raised before the pregnancy was disclosed? Did the employee receive favourable appraisals before maternity leave? Were performance targets altered? Did another employee take over duties during the absence? Was the returning employee given a proper opportunity to resume the role?
None of these matters automatically establishes unlawful discrimination or unfair dismissal.
Taken together, however, they may provide an important picture of how the employer reached its decision.
Contemporaneous records will matter. Emails, performance reviews, meeting notes, correspondence about duties and records of requests for support may all become relevant evidence.
Members should keep such material where they are lawfully entitled to do so, and seek advice before removing confidential workplace documents.
The changes may also provide an opportunity to improve workplace policies before disputes arise.
Employers should review their disciplinary, capability, redundancy and family leave procedures to ensure that the requirements of the new framework are properly reflected.
Trade unions should press for consultation over those changes and seek stronger contractual safeguards wherever possible.
A statutory minimum should never be treated as the limit of what can be negotiated.
Better rights must mean better access to justice
There is another difficulty which should not be overlooked.
Employment rights depend upon effective enforcement.
An employee who has just lost her job may also be coping with the financial demands of a new child, disrupted childcare arrangements or the effects of pregnancy-related illness.
Bringing an employment tribunal claim requires knowledge, evidence, time and persistence.
Many workers will understandably be reluctant to pursue a case against an employer with greater financial and organisational resources.
The Government has already extended the main employment tribunal time limits from three to six months, with effect from 1 October 2026. Transitional rules mean that the shorter period may still apply to earlier disputes.
Employees should therefore obtain advice promptly rather than assume that they have six months in every case. Acas early conciliation requirements must also be considered.
These procedural matters may appear remote from the central issue of pregnancy discrimination. In practice, they can determine whether an employee ever receives a hearing.
The length of tribunal proceedings, the availability of advice and the financial pressures facing claimants can be just as important as the wording of legislation.
That is one reason why trade union representation remains essential.
A welcome reform, but not the end of the argument
The Government’s proposals represent a worthwhile improvement in employment protection.
The move towards objective justification should make it harder for employers to rely upon general assertions about performance, conduct or business requirements when dismissing employees during a particularly vulnerable period.
The extension to other forms of family leave is also sensible.
There are limitations.
The six-month period following maternity leave is shorter than many consultation respondents wanted. The two-week protection following early pregnancy loss appears particularly inadequate. And retaining all five potentially fair dismissal reasons means employers will continue to have considerable scope to argue that dismissal was legitimate.
The effectiveness of the reform will depend upon the final regulations, the guidance accompanying them and the willingness of tribunals to examine employers’ explanations critically.
Most importantly, it will depend upon employees knowing their rights and being able to enforce them.
Pregnancy, childbirth and family responsibilities are ordinary parts of working life. They should not place employees in a position where they must continually prove their value or justify their continued employment.
An employer facing genuine difficulties must be able to manage its business. But that does not mean dismissal should be the first solution considered, particularly where practical alternatives exist.
The law should require employers to demonstrate that they have acted fairly and that losing an employee’s livelihood was genuinely necessary.
The extension of dismissal protections for pregnant workers and new mothers addresses a long-standing concern within the labour movement. While legal safeguards already existed, many workers continued to report feeling vulnerable during pregnancy, maternity leave and their return to work. The new framework should make it more difficult for employers to rely on broad or poorly evidenced justifications when taking decisions that affect this group of workers.
For Solidarity, the task is to ensure that members benefit from these protections when they come into force, while continuing to argue for stronger safeguards through collective bargaining, workplace representation and improvements to the law.
The reforms represent one of the most substantial changes to dismissal law in recent decades and should improve security for many workers. However, no legislation can entirely remove the imbalance of power that often exists between employers and employees. Strong legal rights are most effective when workers understand them, are prepared to enforce them and have access to collective representation. Trade unions will therefore continue to play a vital role in ensuring that the protections promised by Parliament are realised in practice within the workplace.
Legal position: This article reflects the Government’s consultation response published on 22 October 2026. The enhanced dismissal protections are intended to take effect in October 2027, subject to implementing regulations. They apply to the employment law framework in England, Scotland and Wales. Northern Ireland has separate employment legislation.
Further reading: Government consultation response, 22 October 2026 | Acas: Redundancy protection for pregnancy and new parents | Acas: Employment Rights Act 2025
