Employment Rights Act 2025 update: consultation on enhanced maternity and pregnancy protections

The Employment Rights Bill was finally passed on 16 December 2025 and has now become the Employment Rights Act 2025 (ERA 25).

2026 will therefore be a busy year in terms of Government consultations on what some of the proposals will mean in practice, particularly those where the detail has been left to secondary legislation and is therefore still to be confirmed.

One of those areas is proposed enhanced dismissal protections for pregnant women and mothers on maternity leave. The ERA 25 gives the Government the power to make regulations about dismissal during or after a period of pregnancy and the Government has said that it intends to make dismissals of pregnant women or those on maternity leave automatically unfair except in specific circumstances. The protections would also apply to a period following return from maternity leave, likely to be at least a six-month period.

Shortly before the ERA 25 was passed, the Government launched a consultation setting out two broad options for how those enhanced rights might be implemented.

In this article we examine what the options outlined in the consultation could mean for employers. The closing date for the consultation process is 15 January 2026 so if you have concerns or a view on the best approach there is still time for you to respond and you can do so here.

What are the two options under consideration?

The two options are as follows:

1. That employers would need to be able to satisfy a higher standard of fairness when dismissing pregnant women, those on maternity leave and those who have recently returned from leave (Protected Employees), or
2. Only allowing for dismissal of Protected Employees in certain circumstances.

What might option one look like?

The consultation document seeks views on the test that would be applied to determine when dismissals of Protected Employees could be fair. The consultation outlines some potential tests that could be applied for dismissals to be fair and those include where:

• Continuing the employment of the Protected Employee would have a significantly detrimental effect on the business
• Continuing the employment of the Protected Employee poses a health and safety risk to customers, staff or the public
• Continuing the employment of the Protected Employee has a serious negative impact on the wellbeing of others.

Responders can also suggest other reasons and it is not clear whether the Government is proposing that there would be just one test of fairness or whether there could be a number of circumstances in which a dismissal could be considered fair (for example if a dismissal could be fair if it fell into any of the above).

If implemented, this option would require employers to apply different tests when deciding to dismiss depending on whether they are dismissing a Protected Employee or any other type of employee. Additionally, the potential tests that have been outlined would not allow for dismissal in some common circumstances. For example, in a closure of workplace scenario an employer needs to have a way of fairly dismissing a Protected Employee (subject to the wider redundancy protections such as their right to be offered suitable alternative employment where it is available). However, would retaining an employee for whom there is no work actually fall into the category of having "a significantly detrimental effect" on the business and therefore amount to a fair dismissal? If not, then these proposals may not be workable in practice.

What about option two?

The second option dealt with in the consultation would either involve narrowing the scope of or removing some of the current reasons for fair dismissal under section 98 of the Employment Rights Act 1996 in relation to Protected Employees.

In relation to conduct dismissals, the consultation sets out that one suggestion that has been made is that Protected Employees could only be dismissed for gross misconduct or only in specified circumstances (e.g. where their continued employment poses a health and safety risk or has a serious negative impact on the wellbeing of others).

The impact if any of those proposals were implemented would be that, if an employee was on a final written warning whilst pregnant and commits a further act of misconduct, their employer would not be able to dismiss them unless there is, say, a health and safety impact or their conduct amounts to bullying or harassment. That could present employers with some challenging situations and the consultation acknowledges that this is a difficult area.

In relation to capability dismissals, the options on which views are sought include:

• A complete removal of capability from the scope of the fair reasons for dismissal that can be relied upon to dismiss Protected Employees
• That dismissal on the grounds of capability would only be permitted if no suitable alternative role was available or one was offered but turned down
• Dismissal for capability should only be permitted in specific circumstances, e.g. where continued employment would seriously harm the business or pose a health and safety risk, or
• Dismissal for capability would only be fair where an employer can clearly show the employee would not be able to do the job after their protected period ends.

In practice, dismissing pregnant employees or those who have recently returned from maternity leave for capability will often be risky anyway. Employers have to consider the possibility that the performance issues could be contributed to by the pregnancy or time away from the business and run a risk of pregnancy or maternity discrimination claims if they are not sensitive to that possibility. However, a narrowing of the circumstances in which a capability dismissal can be fair would be a significant enhanced protection for employees.

In relation to redundancy, the potential options outlined in the consultation would include:

• Restricting the circumstances in which a protected employee can fairly be dismissed to those where there are financial difficulties affecting the business (and no alternative role was available), or
• That dismissal would only be permitted where the business or organisation ceases to exist.

In essence, employers would only be able to dismiss if in severe financial distress or if they are closing a business unit and it would not be possible to dismiss due to a reorganisation of the work of a protected employee. By far the most common redundancy processes we advise on are restructures so this would significantly reduce employers' options.

Finally, as readers may know, there are two further fair reasons for dismissal – breach of a statutory restriction and some other substantial reason (SOSR) with the latter being a flexible reason, which is often used in breakdown of relationship scenarios or where a business restructure does not meet the statutory definition of a redundancy. In relation to SOSR dismissals, the consultation sets out a number of potential options ranging from removing it as a fair reason for dismissal for Protected Employees through to only allowing dismissal in certain situations (e.g. serious harm or health and safety) or only where a suitable alternative role has been turned down.

In relation to all of the potentially fair reasons for dismissal, one of the potential responses set out in the consultation is to retain the existing fair reasons with an ability for responders to explain why they consider that appropriate.

Other considerations

The consultation also seeks responses on when the protection should start and when it should end. If the protection period was to start before the employer is aware of the pregnancy then employers may unknowingly discriminate against pregnant employees. For when the protection is to end the consultation proposes either 18 months after the birth of the child or six months after the mother returns to work. If the latter option is chosen then this could place a burden on employers for a longer time if the mother takes unpaid leave at the end of maternity leave, whereas the former option would be the same as the existing redundancy protections so would be more straightforward to administer.

Comments

Employers may find option two more attractive than option one as, if only some fair reasons for dismissal are narrowed, they would retain more flexibility than they would if a higher standard of fairness applies in all cases when dismissing Protected Employees. What does seem clear is that, if it will only be possible to fairly dismiss Protected Employees for redundancy in a business closure or financial distress situation, that could make it much more difficult for employers to restructure their businesses. However, there is an opportunity for employers to make the Government aware of the challenges the enhanced protections would cause through responding to the consultation.

We are not expecting the enhanced protections to come into effect until some point in 2027. However, this is employers' chance to have their say and influence the proposals. Therefore, if you are concerned that some of the options under consideration would shift the balance too far in Protected Employees' favour, you may want to submit a response and make your views known.

This article was also authored by Jade Coles, Trainee Solicitor at Womble Bond Dickinson.