The Government have produced its response to its consultation on enhancing dismissal protections for pregnant women and new mothers. The response was published on the 22nd October 2026 following an extensive consultation period which began on the 23rd October 2025 and closed on the 15th January 2026.
The consultation forms part of the Governments “Make Work Pay” scheme which gradually implements the Employment Rights Act into common practice. Employers should be aware of the fast pace of the reforms and adapt their business to meet these new requirements.
The Government have confirmed that the implementation for these measures is expected to be introduced in October 2027.
What’s changing?
The headline of the consultation was whether the existing test applied by Employment Tribunals when determining whether a dismissal is fair or unfair, being whether that decision fell within the “band of reasonable responses available to the employer” should continue to apply where the employee is pregnant or on maternity leave.
In its response, the Government have confirmed that the “band of reasonable responses” test will be replaced by a stricter “proportionality test” (often referred to as objective justification). This aligns dismissal protections for pregnant and new mothers with existing discrimination law under the Equality Act 2010.
Under the proposals, the existing five potentially fair reasons for dismissal established under the Employment Rights Act 1996 will remain (i.e. conduct, capability, redundancy, statutory restriction and some other substantial reason). However, the test to justify a dismissal will now need to be a proportionate means of achieving a legitimate business aim.
In practice, this shifts the balance heavily in favour of the employee, with Employment Tribunals being able to increasingly scrutinise an employer’s decision to dismiss that employee. Employers will have to demonstrate that less severe alternatives, including role adjustments or temporary working arrangements were not available before dismissing the employee.
Additionally, the Government’s response to its consultation also brings clarity to the scope and duration of the enhanced protections for those individuals. The Government have confirmed that this enhanced protection will apply to employees who are pregnant and to those returning from returning leave and will run from the point the employer is notified of the pregnancy through a defined period after the employee’s return to work.
Enhanced dismissal protections will become a ‘day one’ right and apply as soon as an employee has informed their employer that they are pregnant and continue throughout maternity leave and for 6 months following the end of their maternity leave. This is separate to existing maternity redundancy protections which obliges an employer to offer alternative employment in circumstances where their employment is at risk and invertedly ends up being made redundant.
To ensure fairness across all types of working families, the Government has expanded the scope of these changes, so they are not exclusive to birth mothers. Recognising that new parents face similar workplace vulnerabilities regardless of the formation of their family.
To this effect, the exact same day-one eligibility applies to various other forms of leave, including adoption leave where protection applies from the first day of leave, during the adoption leave and 6 months after it ends. For shared parental leave, neonatal care leave and bereaved partner’s paternity leave, protection applies during the leave where 6 weeks have been taken by that employee and thereafter for 6 months.
Lessons for Employers
Although implementation remains some time away, October 2027 will arrive quickly for employers reviewing long-term workforce planning, performance management and dismissal procedures.
Employers should begin considering whether their existing processes are robust enough to withstand a proportionality assessment rather than the traditional “reasonable responses” test.
Particular attention should be given to:
- documenting the legitimate business reasons underpinning any proposed dismissal;
- actively considering and recording alternative measures before dismissal is contemplated;
- ensuring managers are trained to identify when enhanced protections apply;
- reviewing capability, attendance and redundancy processes and policies involving protected employees; and
- maintaining clear audit trails demonstrating why alternative options were considered but ultimately rejected.
The ability to evidence a thorough and carefully considered decision-making process is likely to become increasingly important in defending future claims.
Commercial Realities
Whilst the Government’s proposals are aimed at improving workplace protection for new and expectant parents, they are also likely to have significant practical implications for employers.
Dismissal processes involving protected employees may become longer, more administratively burdensome and potentially more expensive. Employers should expect increased scrutiny of management decisions, greater evidential requirements and a higher likelihood of disputes where alternative options have not been fully explored.
For HR teams and managers, the focus will increasingly shift from whether a decision was merely reasonable to whether it was genuinely necessary and proportionate in the circumstances.
How we can help
Whilst the reforms are not expected to take effect until October 2027, employers should start preparing now. Early action can help businesses identify potential areas of risk, review internal processes and ensure managers understand the heightened obligations likely to arise under the new regime.
At Herrington Carmichael, we have a team of expert employment lawyers who can assist your organisation by:
- auditing existing dismissal, redundancy and family leave policies;
- reviewing capability and conduct procedures to ensure they can withstand increased Employment Tribunal scrutiny;
- providing manager and HR training on the upcoming changes;
- advising on complex cases involving pregnancy, maternity, adoption or shared parental leave; and
Webinar
We have an upcoming webinar on the new risks, rules and realities relating to fire and rehire and what HR needs to know about workplace changes under the Employment Rights Act.
This practical webinar by Hannah King (Legal Director) and Victoria Wooton (Solicitor) will explore what is changing with the law around fire and rehire and how it will interact with unfair dismissal before finishing off with practical steps that you should be taking now to ensure your organisation is prepared for the upcoming changes. Sign up to secure your place here!
