Two more consultations complete the set that the Government published on 23 October (see our blog on the other two consultations on trade union reform). We expect this trickle to become more of a steady flow once the ERB proceeds to Royal Assent later next month, so watch this space.   

Enhanced dismissal protections for pregnant women and new mothers

The Government intends, through regulations, to protect, against all forms of dismissal, both pregnant employees and new mothers for a period of up to 18 months after giving birth. Dismissal for any reason during pregnancy or the 18 months post birth will be unlawful unless there are specific circumstances. 

The consultation is a lengthy one and invites evidence from individuals who have suffered discrimination during pregnancy or their maternity period, as well as input on the specifics of their new proposal. The specifics in the consultation are:

• What those ‘specific circumstances’ for being able to dismiss a pregnant woman or new mother fairly should be. 

• Should there be a new test of fairness and what would that look like? Would it mean that only if the continuing employment of the pregnant employee or new mother had a significant detrimental effect on the business could she be dismissed? 

• Should the current five fair reasons for dismissal be narrowed? On what limited conduct and/or capability grounds could a new mother or pregnant woman be dismissed? On what limited grounds should redundancy be permitted and similarly when would a SOSR reason be fair and acceptable? 

• When would employees be eligible for these enhanced protections? Should it be a day one right or after an initial period of employment (similar to the statutory probationary period for new unfair dismissal rights), when should the protected period start for pregnant women; should it be when she is aware she is pregnant or when she tells her employer and then when does that protection end? 18 months from the birth, so aligning with similar protections for redundancy or six months from return to work 

• Are there any potential unintended consequences attached to this change? How should the Government mitigate against any of these? The Government raises concerns with increased discrimination (employers may not want to employ women of child-bearing age), the administrative burden of these enhanced protections and the unrealistic demands on small businesses 

• Who else should be covered by these protection provisions? The Consultation also seeks views on extending the protections to other types of family leave – adoption leave, shared parental leave, etc.

• How to best support businesses through the change – the Government states “our aim is to minimise disruptions and foster a resilient business environment” by offering training, templates, guidance, etc. 

Bereavement leave

In the ERB, the Government introduced a day one right to unpaid bereavement leave for employees who experience the loss of a ‘loved one’, including pregnancy loss before 24 weeks.  The details will, like much of the ERB, be laid down in regulations. These are the details the Government is consulting on in this document. The main areas for consultation are as follows. 

• Eligibility for bereavement leave – would eligibility for the loss of loved ones address immediate family members or other types of relationships where there is no title but rather a depth of connection. Would eligibility for pregnancy loss be only for an employee who has physically lost their baby, or should it extend to partners? Will pregnancy loss extend to any type of loss, including miscarriage, IVF embryo transfer loss and medicated terminations?

• Duration and practicalities of leave – the Government asks for views on whether the unpaid leave should be one or two weeks and whether the duration should be the same regardless of the relationship to the deceased. For pregnancy loss, there is a further question on when the leave can be taken – whether that be from the date of the loss or from the date of the knowledge of the loss. Other questions relate to whether the leave should be taken in one block or in various units and within what time frame the leave should be taken.

• Notice requirements – further questions on what notice an employee will be required to give for taking the leave and what the most appropriate form of evidence requirements could be, or whether no evidence is required. The latter would mirror the current entitlement to parental bereavement leave for still births or the death of a child under 18 years old. 

Your next steps

• As we are advising on all consultations, get involved either individually as an organisation or under an umbrella body. These changes will affect all employers and so early involvement may help impact the final outcome.

• Be aware that these measures are part of a wider review that the Government is carrying out of all parental leave and pay. Launched early summer 2025, the Government want to look at all pay and leave provisions and ensure our future system reflects modern life and work and seek to ensure that it supports working families better.  We do not know when that review will be concluded or what impact/changes will result. 

• Whilst the consultation closes on 15 January 2026, the provisions are not due to come into force until 2027 – no exact date given. So there are no immediate changes to be made to your policies, but we would advise noting the proposed changes and keeping an eye on our Employment Rights Bill Hub for updates and draft regulations.