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On 23 October 2025 the UK Government published four consultation papers on aspects of the Employment Rights Bill (the 'Bill'), including a consultation on enhanced dismissal protections for pregnant women and new mothers. We consider below what this tells us about the Government's intentions once the new law is in force.
The Labour Party's 'Making Work Pay' document, on which the Bill is based, stated an intention to make it unlawful to dismiss pregnant women, mothers on maternity leave, and mothers post maternity leave for at least six months after they return to work, except in specific circumstances. The Bill does no more than give the Secretary of State power to make regulations putting this promise into effect, hence the need for consultation on detailed regulations.
The premise of the consultation paper is that current legal protections are too weak and ought to be strengthened by narrowing the range of circumstances in which a woman can be lawfully dismissed when she is pregnant or in the first 18 months after giving birth. There are broadly two options proposed:
- a stricter test for 'fairness' than the current 'band of reasonable responses test' that applies to dismissals and which gives employers a broad latitude when making a decision about whether or not to dismiss an individual;
- narrowing the scope of, or removing altogether, some of the potentially fair reasons to dismiss (conduct, capability, redundancy, statutory prohibition and some other substantial reason) when considering the dismissal of pregnant women or new mothers.
The opening question in the paper is therefore about which of the two broad approaches should be followed and the paper then sets out a range of options under each test. It is implicit from the way questions are phrased that the Government considers that the first option would be more workable.
Comment
The statistics set out in the consultation paper do not provide a clear basis for action and are arguably out of date (for example the EHRC report on discrimination against pregnant women quoted in the paper was compiled in 2016). Part of the consultation paper is set aside for asking questions about the experiences of pregnant women and new mothers in order to enhance the evidence base. That suggests that the shape and size of the problem is not yet known and it might therefore be argued that the decision to legislate was premature. However, the Government is clearly committed to making some sort of change and the consultation exercise provides employers with an opportunity to contribute and share their experiences and views.
Lawyers might say that the existing protections for pregnant women and new mothers are in fact quite strong and the problem is less with the quality of the legal protection than with the well documented difficulties of enforcing employment rights generally. This is particularly the case for new mothers who may be at a vulnerable point in their lives, financially and/or emotionally.
The idea of replacing the 'band of reasonable responses' test with a test that it is more difficult for an employer to satisfy is more attractive than adjusting the standards applicable to pregnant women when considering matters such as their conduct or capability. Some of the examples in the consultation paper illustrate the difficulties that this could entail.
The consultation closes on 15 January 2026. If you have any views that you would like the employment team to express on your behalf during the consultation exercise please don't hesitate to get in touch. If you would prefer to respond directly you can do so using this link.
Read more about the proposals for leave for bereavement, including pregnancy loss.
This article is authored by Christina Morton, senior knowledge lawyer in our UK employment team.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
