In brief
Following a Government consultation, new reforms under the Employment Rights Act to strengthen pregnancy and new parent workplace protections have been announced. In short, a stricter legal test for dismissals will apply during a newly defined protected period, with protections being extended to pregnant employees and new parents, including those on maternity, adoption, shared parental, neonatal care, and bereaved partner’s paternity leave.
The proposals are expected to come into force in October 2027, with new regulations and additional Government guidance expected to be published in advance.
In more detail
What is the current position?
Under the existing legal framework, whilst employers are not prevented from dismissing pregnant employees or new parents for fair, non-discriminatory reasons, the following protections apply:
- Pregnant employees and new parents are protected from discrimination arising from pregnancy or maternity, including dismissal for pregnancy or maternity related reasons;
- Dismissals connected to pregnancy, childbirth, or exercising maternity leave rights are automatically unfair. No minimum period of service is required in order to bring a claim for automatic unfair dismissal, unlike ordinary unfair dismissal claims; and
- Enhanced redundancy protections are in place for employees during pregnancy, and for a period of 18 months from the child’s birth; these protections also exist for those taking adoption leave, shared parental leave, neonatal care leave or bereaved partner’s paternity leave, with the duration of the protection depending on the length of leave taken. The protections provide employees with a priority right to be offered redeployment into suitable alternative roles where available in redundancy situations.
Dismissals for other reasons, where challenged, are currently considered under ordinary unfair dismissal using the standard “band of reasonable responses” test.
How is the legal framework changing?
From October 2027, Tribunals will adopt a stricter test for dismissals of pregnant employees and eligible new parents during a newly established “protected period”.
Who will be eligible for protection?
The protection will apply to pregnant employees, those on maternity leave, and those taking adoption leave, shared parental leave, neonatal care leave and bereaved partner’s paternity leave.
Unlike ordinary unfair dismissal protection, which generally requires a qualifying period of service (currently two years, reducing to six months from 1 January 2027), the enhanced dismissal protection will be a day-one right. This aligns with existing automatic unfair dismissal and pregnancy or maternity discrimination protections.
The “protected period”
The protected period will begin once the employer has been notified of an employee’s pregnancy, and will continue until six months following the end of maternity leave. Comparable protections are in place for those taking adoption leave, shared parental leave, neonatal care leave and bereaved partner’s paternity leave. For these leaves, the protections will apply during the period of leave and for six months following the end of leave where six or more continuous weeks of leave are taken (or in the case of adoption leave, for six months following the end of the leave regardless of the length of leave taken).
The existing “protected period” for enhanced redundancy protections will remain, meaning different “protected periods” could apply for the same employee, depending on the length of leave taken.
The new test
Dismissals will still be possible for one of the five potentially fair reasons for dismissal – capability, conduct, redundancy, statutory prohibition/illegality or some other substantial reason. However, the existing “band of reasonable responses” test will be replaced with a more stringent test, requiring employers to justify dismissal as a proportionate means of achieving a legitimate aim.
In practice, this aligns the test with the existing justification test for a number of discrimination claims under the Equality Act 2010. Under the new test, employers will need to identify the business objective behind a proposed dismissal and explain why dismissal is a proportionate way to achieve it. This means that an employer will need to demonstrate that they have considered whether there are reasonable and less discriminatory alternatives to dismissal, such as temporary changes to roles, workplace adjustments or identifying suitable alternative roles, before moving to dismissal.
The Government intends to provide guidance on applying the proportionality test, rather than setting it out in the legislation, and this will include guidance on considering alternatives to dismissal. As is the case currently for discrimination claims, what is proportionate in practice will vary according to the circumstances, and we anticipate that this will evolve as case law develops in this area. This creates an additional degree of uncertainty for employers and heightens the risk of dismissals in these circumstances.
Considerations for employers
What should employers do now?
Whilst further clarification on the changes is awaited and should be monitored, it would be sensible for employers to consider:
- Reviewing HR systems in place to record pregnancy notifications and family leaves. It will become increasingly important to accurately maintain these records to allow HR to keep track of varying “protected periods” once the changes come into force in October 2027.
- Reviewing and updating dismissal procedures and identifying changes that may be needed to existing policies once the implementing legislation is finalised.
- Introducing robust documentation processes to ensure key decisions on business rationales, alternatives to dismissal, redeployment and proportionality are evidenced.
- Ensuring managers are aware of the upcoming changes, and seek HR or legal advice before dismissing pregnant employees, new mothers or other potentially protected parents, including during probationary periods.
For specific advice on these developments and to help your business navigate these upcoming changes, please speak to your usual Baker McKenzie contact.
Raman Kaur, Trainee Solicitor, contributed to this legal update.