Dismissal decisions involving pregnant employees and new mothers are set to face closer scrutiny. For employers, the practical question will increasingly be whether they can explain why dismissal was proportionate and what alternatives they explored first.
In this episode of Informed, Dipti Shah and Patrick Higgins discuss the Government’s consultation response on enhanced dismissal protections and the implications for employers managing performance, restructuring or an employee’s return from maternity leave.
What is changing?
The Government intends to introduce a proportionality test for unfair dismissal during the protected period. This would replace the existing “band of reasonable responses” approach with an assessment of whether dismissal was a proportionate means of achieving a legitimate aim.
The changes extend beyond redundancy. The Government intends to implement them through regulations in October 2027; they are not yet in force.
Why alternatives to dismissal will matter
As Dipti and Patrick explain, the shift will put greater emphasis on the reasoning behind an employer’s decision. Identifying a business concern will be only part of the exercise. Employers should also be able to explain why other ways of addressing it were unsuitable.
Depending on the circumstances, the discussion highlights options such as adjusting hours, considering another role or exploring a job share. These are examples to assess, rather than a checklist that will resolve every case. Employers will need to consider what is realistic for the particular role, employee and business.
A practical starting point is to involve the employee in that discussion and keep a clear record of the options explored. A written explanation prepared after the decision is unlikely to be as useful as evidence showing how the employer reached it.
Who will receive the enhanced protections?
The planned protections would apply from notification of pregnancy, throughout maternity leave and for six months after it ends, without a minimum service requirement. The total period will therefore vary rather than being a fixed 18 months.
The response also extends protection to adoption leave and certain other parental leave categories. For shared parental leave, six continuous weeks would be needed for protection to continue for six months after leave ends.
What does this mean for probation and performance management?
One issue raised in the video is how employers should approach concerns arising early in employment. A probation clause should not be treated as a shortcut around statutory protections.
The planned day one protection is separate from the general qualifying period for ordinary unfair dismissal. That statutory qualifying period is also distinct from an employee’s contractual probation period.
For managers, the practical lesson is to address concerns promptly, communicate expectations clearly and document support offered. Where dismissal is being considered, the employee’s circumstances and applicable protections need to form part of the assessment from the outset.
How should employers prepare?
Dipti and Patrick emphasise the value of early preparation. Employers can start by reviewing how dismissal decisions are escalated, who checks the supporting evidence and whether managers understand when specialist advice is needed.
Training should help managers recognise situations involving pregnancy or a return from family leave, and encourage them to explore solutions before reaching a conclusion. Decision records should explain the business concern, the alternatives discussed and the reasons for rejecting them.
The Government has committed to supporting guidance, including information from Acas. Employers should review their approach again when the regulations and guidance are available.
Watch the conversation
Watch Dipti Shah and Patrick Higgins discuss pregnancy, maternity and dismissal in Informed, including why the evidence behind a decision could become as important as the decision itself.
For advice on managing dismissal risks, reviewing workplace procedures or training managers, contact Quastels’ Employment team.
Position as at 23 October 2026.
