The Government has confirmed significant changes to employment law that will increase protection against dismissal for pregnant employees and those taking family leave. The reforms, expected to come into force in October 2027, will require employers to justify dismissals during a protected period in a similar way to discrimination claims under the Equality Act 2010.
What is Changing?
Currently, employers can dismiss employees for one of the potentially five fair reasons for dismissal, with tribunals assessing whether the decision fell within the ‘band of reasonable responses’. Under the new regime, where an employee is within the protected period, employers will instead need to show that dismissal was a proportionate means of achieving a legitimate aim. This is a much higher hurdle and is likely to require employers to demonstrate that there were no reasonable alternatives to dismissal, such as adjusted duties, redeployment or other support measures, before dismissal is pursued. This imposes a justification test more closely aligned with the proportionality analysis applied under the Equality Act 2010.
Regulation will not define how this test will operate but ACAS will produce guidance nearer to the time that this expected to come into force.
Protection Period
The protection will apply from the point an employee informs their employer that they are pregnant, whether verbally or in writing. It will continue throughout maternity leave and extend for six months after maternity leave ends, which is 18 months from birth where all 52 weeks are taken. Where a ends before 24 weeks, protection lasts two weeks from the end of the pregnancy. Those taking adoption leave are covered from the first day of leave, with protection continuing for six months after leave ends. Shared parental, neonatal care and bereaved partner’s paternity leave are covered from the first day of leave. Protection continues for six months after leave ends only where at least six continuous weeks’ leave has been taken.
Preparing for the Changes
Although detailed guidance is expected from Acas, the direction of travel is clear. Employers will need to exercise greater caution when managing performance, conduct, redundancy and capability issues involving employees who are pregnant or have recently returned from family leave. Decisions affecting pregnant employees or those returning from family leave will require careful consideration, thorough documentation and evidence that all alternatives have been explored before dismissal is contemplated.
Employers should start reviewing their dismissal, redundancy and absence management procedures well in advance of the changes. Early planning and manager training will be essential to minimise legal risk and ensure compliance with the new rules.