The Government response to enhanced dismissal protections for pregnant women and new mothers published today marks a more decisive move towards a more robust and preventive framework.
The Government’s position is that current protections do not shield pregnant and new mothers from dismissal risks outside of redundancy situations as evidence shows persistent vulnerability during pregnancy, maternity leave and the months following return to work.
Key changes to note are:
1. New legal test
A new legal test of ‘proportionality’ replaces the current test of ‘the band of reasonable responses.’ Currently, in an unfair dismissal case, the ‘range of reasonable responses’ test means tribunals have to ask not whether they would ave chosen to dismiss in these circumstances but whether dismissal was one of the options available to a reasonable employer. The tribunal must not substitute its own view for that of the employer. This means that dismissals that may strike many people as harsh may still be held to be fair.
The changes today means that tribunals will now ask:
- What ‘legitimate business aim’ was the employer pursuing?
- Was the dismissal a ‘proportionate means of achieving that aim’?
- Were there any less severe alternatives reasonably available?
In other words, the tribunal must take its own view of whether the treatment was proportionate rather than consider the question from the point of view of what a reasonable employer might conclude.
This elevates the threshold considerably. Employers will need to demonstrate that they explored options such as temporary adjustments, additional support, training, or redeployment before concluding that dismissal was the only proportionate route. Proportionality will require employers to evidence their reasoning with far greater clarity.
2. Day one right
The new changes will be a day one right for employees from the point the employee informs the employer of pregnancy.
3. Length of Protected Period.
The protected period will now run:
- throughout maternity leave and for six months after return
- for two weeks after the end of pregnancy where no maternity leave is available
- During adoption leave, shared parental leave, neonatal care leave and bereaved partner’s paternity leave, and six months post‑leave, in circumstances where six continuous weeks are taken.
4. Implementation Date
The changes take effect from October 2027.
This is a deliberate recalibration of the legal landscape. The government wants dismissal during pregnancy and parental leave to be a last resort. While the changes do not come in until October 2027 (and ACAS guidance is expected), embedding what will be the new practice and training managers on this new way of thinking about dismissals of pregnant and new mothers will help employers navigate the new regime confidently and lawfully.
