The Employment Rights Bill (the ‘ERB’) is set to bring changes to family friendly rights, including enhanced dismissal protections for pregnant women and new mothers. How these new rights will operate has been unclear as the ERB is silent on the detail, which will be left to regulations. On 23 October 2025, the Government published a consultation paper, asking for views on the options being explored by the Government. We look at what these policy proposals might mean for employers.
The Proposal
The explanatory notes to the ERB said that the Government plans to “amend existing powers so that regulations can be made to ban dismissals of women who are pregnant, on maternity leave and during a six-month return-to-work period – except in specific circumstances.”
The newly published consultation document defines ‘new mothers’ as those who have given birth in the last 18 months. It also uses the terms ‘pregnant woman’ or ‘new mother’ for simplicity and brevity but recognises that some individuals who experience pregnancy may identify as trans men or non-binary and prefer terms such as ‘pregnant person’ and therefore confirms that the policy will be inclusive of all individuals who experience pregnancy. We use the same terms as the consultation here.
The consultation seeks views on:
- The “specific circumstances” in which dismissals should still be allowed
- When the protections should begin and end
- Whether other categories of new parents should be included
- How best to support businesses through the change, and how to mitigate unintended consequences (for example, potential employer reluctance to hire)
Drivers for Change
Existing law already protects pregnant women and those on maternity leave from being dismissed on the basis of their pregnancy or maternity, under the Equality Act 2010 and the Employment Rights Act 1996. There are also enhanced redundancy protections (which also extend to certain other types of family leave). For example, if a pregnant woman or new mother is at risk of redundancy and a suitable vacancy exists, the employer must offer that vacancy to the pregnant woman or new mother ahead of other employees or face a potentially automatically unfair dismissal.
Despite these protections, the consultation cites evidence of unfair treatment, which is why it is making reforms. It references a 2016 report by the Equality and Human Rights Commission (‘EHRC‘), which found that 11% of new mothers felt forced out of jobs and notes that despite legal protections “many expectant and new mothers continue to report experiences that suggest unfair treatment persists.”
What Options Does the Consultation Give for ‘Exceptional Circumstances’?
The consultation is seeking input on what circumstances it should remain lawful to fairly dismissal pregnant women or new mothers. It considers whether current fair dismissal grounds (conduct, capability, redundancy, statutory illegality, some other substantial reason (‘SOSR’)) should remain, be narrowed or removed. The paper highlights the need to balance stronger protections with the ability to dismiss in serious cases, and notes that overly strict rules could discourage hiring.
Two options are explored:
- Introducing a new general test for fairness
Employers would still be able to rely on any of the existing fair reasons for dismissal, but they would also be required to meet a new stricter standard when relying on that reason to dismiss a pregnant woman or new mother. For example, that continuing the employment 1) would have a significantly detrimental effect on the business, 2) poses a health and safety risk to customers, staff or the public or 3) has a serious negative impact on the wellbeing of others.
This would be simple in theory in comparison to option 2 below, but there may be difficulties in demonstrating the additional enhanced standard in practice. Employers would need clarity and guidance as to what would meet the new thresholds for a fair dismissal.
- Narrowing the scope of and/or removing some of the fair dismissal reasons
This approach involves limiting or removing some of the five potentially fair reasons for dismissal. The consultation explores each potential ground for dismissal and considers different options specific to that ground.
In common for conduct, capability and SOSR dismissals, one option being explored is whether dismissals would be permitted if, in addition to satisfying the usual tests for fairness in those circumstances, the continued employment would seriously harm the business, poses a health and safety risk to customers, staff or the public, or has a serious negative impact on the wellbeing of others.
Below are some of the other key options being explored for each dismissal ground:
- Conduct: The consultation notes this is complex, including for repeated acts of misconduct, and seeks views on whether it should be possible to dismiss for gross misconduct only.
- Capability: The consultation recognises that capability dismissals can be complex in these circumstances particularly if the issues are temporary. Options considered include permitting capability dismissals but with additional steps. For example, where there’s no suitable alternative role available (or one was offered and turned down) or where the employer can also clearly show the employee won’t be able to do the job after the protected period ends.
- Redundancy: The consultation explores whether the current suitable alternative vacancy protections are sufficient or whether there should be a new heightened test so redundancy dismissals are confined to situations here there is a pressing need. This could include where there is no suitable alternative vacancy and either 1) where terminating employment would mitigate any financial difficulties that were affecting – or were likely to affect in the immediate future – the employer’s ability to continue the business, or 2) where the business/organisation ceases to exist.
- Statutory prohibition (i.e. legal restriction preventing the employment): The consultation notes that early stakeholder feedback has suggested this ground should be retained as is, but seeks views in any event on whether employers should still be able to fairly dismiss on statutory prohibition grounds but only if there’s no suitable alternative role available or one was offered and turned down.
- SOSR: As this is a broad category of dismissal, it is harder to define options. Specific options considered include permitting SOSR dismissals but only if there is no suitable alternative role available or one was offered and turned down.
The options seem wide open at present with multiple avenues being explored – although all options aim to achieve greater dismissal protections.
Other Points Covered by the Consultation
The consultation also seeks views whether there should be a qualifying period (3-9 months) for the enhanced protections despite the potential day one unfair dismissal rights being introduced under the ERB. It explores when the period of protection should start and end, such as 18 months from birth of the child, 6 months from their return to work and 2 weeks after the end of their pregnancy where there is no entitlement to maternity leave.
It also considers whether other new parents should be covered by the protections and if so how. For example, employees taking adoption leave, shared parental leave, neonatal care leave or bereaved partners’ paternity leave (once in force).
There are also several questions looking at how best to support individuals and businesses and mitigating unintended consequences.
Next Steps
The consultation runs until 15 January 2026 and will inform the detail of secondary legislation. According to the consultation paper and the Employment Rights Bill Roadmap, implementation is expected to take effect in 2027 but if there are further delays to the ERB this timeline may change. Employers, business representative organisations, or HR bodies may wish to respond to the consultation to shape the final form of the regulation.
While these proposals are not yet law, employers should continue to track developments in this space. Once the law becomes clearer, training, FAQs and updated communications for line managers and HR teams will be needed to ensure awareness of the changes. Employers will also need to have a method for tracking people on or returning from leave not just to ensure they are aware of who is protected for the purpose of redundancy dismissals (as is the case now) but for any dismissals.
