New dismissal protections for pregnant employees and new parents

The change will not prevent employers from dismissing employees for legitimate reasons. However, it will require closer scrutiny of why dismissal was necessary and whether a less severe option could have achieved the same objective.

The government had previously committed to making it unlawful to dismiss employees during pregnancy and maternity leave, and for six months after their return, except in specific circumstances.  Applying to all dismissals, this goes further than the redundancy protection which came into effect in 2024.  

What is changing?

Employment tribunals currently apply the ‘band of reasonable responses’ test when deciding whether an ordinary unfair dismissal was fair. Put simply, the Tribunal considers whether the employer’s decision fell within the range of responses that a reasonable employer could have taken in the circumstances.  

The government has confirmed that all five existing potentially fair reasons for dismissal will remain available: capability, conduct, redundancy, breach of a statutory restriction, and some other substantial reason.  

However, from October 2027, employers will need to meet a stricter test to show that dismissals during certain pregnancy and family-related protected periods are fair. Tribunals will instead consider whether the dismissal was a proportionate means of achieving a legitimate aim.  

This test will be familiar to employers as it is already used as a defence to various discrimination claims under the Equality Act 2010. It will require an employer to identify a legitimate business objective and demonstrate that dismissing the employee was a proportionate way of achieving it. In practice, this will usually mean showing that reasonable alternatives to dismissal were considered but were not viable options in the circumstances.  

Some employers may well be forgiven for wondering whether this is a change at all, given that those who want to successfully defend a potential unfair dismissal claim will already need to have evidence to show that their decision was reasonable.  

However, Tribunals will approach the question differently. There is endless unfair dismissal case law reminding parties that the Tribunal should not substitute its own opinion for that of the employer. However, the Tribunal will now need to do exactly that to decide if the dismissal was proportionate. The Tribunal will have to form its own view of whether the decision was reasonably necessary rather than asking whether the employer’s view fell within a reasonable range of responses.  Whilst the Tribunal will still give weight to the employer’s reasonable business needs, it will need to weigh these against the impact on the employee. This will mean less certainty for employers in defending unfair dismissal claims.  

The government response states that they expect dismissal could be justified in examples where continued employment would pose a health and safety risk to customers, staff or the public, would have a significantly detrimental effect on the business, or would have a serious negative impact on the wellbeing of others.  

Tribunals are generally sceptical of justifications based on costs alone, which are difficult to rely on to defend a discrimination claim. They will also tend to look at whether less drastic options were available, such as starting a performance improvement plan or making a temporary arrangement.  

How does the new protection work?

The enhanced dismissal protections will apply from the first day of employment, without any minimum service requirement. The relevant dates will depend on the employee’s circumstances and the type of leave taken. 

Ordinary paternity leave and unpaid parental leave are not covered.

These new protected periods should not be confused with the existing enhanced redundancy protections, which give priority for alternative employment in a redundancy situation.  Those protections remain in place, including the 18-month period following birth or adoption in qualifying circumstances. Redundancy protection is tied to the date of the child’s birth rather than the end of maternity leave. The new six-month post-leave period does not replace or shorten this separate, additional protection.  

This means there are more dates for employers to track. For example, a woman who returns from maternity leave after nine months will lose her enhanced dismissal protection three months before her redundancy protection expires. The government decided not to align the new protection with the existing redundancy protection on the basis that the new test places greater obligations on employers.  

What does this mean for employers?

The change goes beyond requiring employers to follow a fair procedure. It could affect the outcome of an unfair dismissal claim even where the employer has a legitimate reason for dismissing the employee and has followed a reasonable process.  

The new rules will sit alongside existing protections. Dismissals because of pregnancy or maternity-related reasons can already be automatically unfair and may amount to unlawful discrimination. The enhanced test will provide an additional safeguard against dismissal during the protected periods, including where the reason for dismissal is unrelated to pregnancy or family leave.  

The protection will apply from day one of employment, meaning even service under six months or probationary dismissals could be affected. It will also cover decisions not to renew fixed-term contracts, not just decisions to terminate ongoing employment.  

Redundancy decisions may require closer scrutiny, even where the employer has followed a fair selection process and complied with existing priority rules for suitable alternative vacancies. Employers may need to consider whether other practical arrangements could avoid dismissal, although our view is that the new test will not require them to create roles or retain work that no longer exists. Where no realistic alternative is available, a genuine redundancy may still justify dismissal.  

Conduct and capability decisions may also become harder to predict. Whilst employers should already consider the circumstances of each case and whether a lesser sanction or further support would be appropriate, with the new changes an employer may find it harder to justify dismissal during a protected period where a realistic alternative could address the issue. This does not mean employers must always find an alternative to dismissal or tolerate unacceptable conduct or poor performance, but it does mean that establishing a potentially fair reason will not, by itself, be enough to demonstrate the dismissal was fair.  

The changes could also create difficult questions about consistency. Employers may need to reach different outcomes for employees facing similar conduct or performance concerns because one falls within a protected period and the other does not. This is a real risk, for example, in City of York Council v Grossett, a disability case, the Court of Appeal accepted that the same dismissal could be fair for unfair dismissal purposes but unjustified disability  discrimination. Although this will not prevent employers from taking appropriate action, explaining the difference in treatment to managers and colleagues may be challenging, particularly where the reasons cannot be shared more widely.  

There is also a risk that employers may become less confident about the outcome of a dismissal claim. Decisions that might previously have been considered defensible could be harder to assess in advance, potentially increasing the time and cost involved in managing dismissals and the pressure to settle disputes.  

Employers should not assume that delaying a dismissal until the protected period ends will avoid these issues. A subsequent dismissal could still lead to a discrimination claim if it is connected with pregnancy or family leave.  

What should employers do now?

Many of the following steps should already form part of a fair dismissal process. However, they will become even more important for employers dismissing someone during a protected period, and will need to be in place in time for October 2027.

• HR needs to have a reliable way of identifying when the protection starts and ends, including where pregnancy has been notified informally, leave dates change or an employee takes more than one type of family-related leave. A verbal notification to a line manager is likely to be enough to start protection.  
• Review dismissal procedures, template letters and scripts, and make sure that decision-makers understand that establishing a potentially fair reason and following a reasonable process may not be enough during a protected period.  
• Document the specific legitimate business objective, the alternatives considered, the reasons those alternatives were not reasonably viable and why dismissal was ultimately justified.  
• Consider and document alternatives before deciding to dismiss. Depending on the circumstances, these could include temporary changes to duties or working arrangements, additional support or training, a performance improvement plan, or redeployment to a suitable alternative role. Be prepared to explain why the dismissal was a proportionate response and why the alternatives were not reasonably practicable.
• Train managers and HR teams to ensure that those involved in dismissal decisions can identify when the enhanced protections apply and understand the need to assess alternatives before reaching a decision.  
• Ensure appeal managers also consider and document alternatives to dismissal, not just whether the procedure was fair. The appeal will be a further opportunity to show the decision was proportionate.  

Each case will need to be assessed on its own facts. The government recognises that the options available will vary depending on the size and nature of the business. The new test is not intended to require employers to pursue impractical alternatives, but they will need to be able to explain why dismissal was proportionate in the circumstances. 

Further guidance is expected from the government and Acas to support implementation.