New maternity and pregnancy protections raise dismissal risks for UK firms

The government has launched four consultations to support the implementation of the Employment Rights Bill, now in its final stages in Parliament. They cover flexible working, carer’s leave, trade union rights, and enhanced protection from dismissal during pregnancy and maternity leave. That last one, enhanced protection from dismissal during pregnancy and maternity leave, is arguably the most significant for large employers in terms of legal exposure and reputational risk. And the direction of travel is clear — tighter rules, greater scrutiny, and stronger presumptions in favour of the employee. We’ll speak to an employment lawyer about the level of risk and how HR should manage it.

The proposals, which stem from the Employment Rights Bill, are wide-ranging, extending protection beyond maternity leave to include pregnancy itself and the period after return to work. The legal risks are clear to see – especially around conduct and capability dismissals – with particular challenges for large organisations.

The consultation is in its early stages but there are three areas generating plenty of debate at the moment from an employer’s perspective. 

First, a risk of over-cautiousness. So, stricter rules may deter dismissals altogether, even when terminations may be justified. That could result in employers avoiding difficult conversations or treating returners differently, which runs the risk of indirect discrimination claims.

Secondly, the consultation doesn’t define when protection starts or ends, for example, whether it begins at pregnancy confirmation or notification, or whether phased returns are included. That uncertainty creates procedural risk for employers so hopefully that will be made clearer.

Thirdly, there’s pressure to raise the bar and tighten the threshold for fair dismissal, especially for conduct and capability cases. It would mean employers may need stronger evidence, more process, and clearer justification to defend dismissals.

So let’s get a view on this. Earlier I caught up with Anne Sammon who joined me by video-link to discuss it. So, what’s changing? 

Anne Sammon: “Under the new law it will be prohibited to dismiss employees who are returning from maternity leave for a protected period of six months and that will mean that if there are issues of capability or conduct, the employer will have to go above and beyond the usual process and the usual justification for an employee who has returned from maternity leave to be able to justify the termination of employment. That’s particularly tricky because we often see cases, particularly in relation to capability, where there may have been capability issues before the pregnancy was disclosed to the employer that have just gone undealt with and the employer then has delayed dealing with those issues because the employee is pregnant and on maternity leave and this will then push those issues further forward into the future, which potentially has an impact on the business – if somebody isn't performing that could be impacting profitability, revenues, all sorts of other kind of economic drivers, but it also makes it far more challenging to then deal with the underlying cause of performance where It's been going on for a long period of time.”

Joe Glavina: “Looking at the consultation paper, Anne, there is uncertainty around exactly when the protection starts and ends which seems a fairly fundamental point.”

Anne Sammon: “The consultation is setting out the kind of proposed ways forward on this, and the hope would be that maybe once we actually get further down the line we might have greater clarity as to when those protections will start and when day one of that protected period commences, whether that's full return, or whether it's the point at which somebody comes in for a phased return. So my hope would be that we'd get some additional guidance around when that protected period starts, But we have the same in terms of the more general protection, in terms of well, does it start the second that the employee knows that they're pregnant? Does it start the second they tell the employer? Is it the point at which they go off on leave? So all of this is still a bit up in the air and there is still a huge amount of uncertainty around the new rules that would be implemented.”

Joe Glavina: “I can see an issue if the employer’s real reason for termination is perfectly legitimate, but the timing overlaps with the protected period. So essentially you’d have a causation issue created by the timing. How do you tackle that one?” 

Anne Sammon: “So, if there is a genuine issue that the employer is trying to deal with, they're going to have to show that that is the reason for the termination and also, to some extent, that it's not caused by the timing of the maternity leave. So sometimes we'll see, for example, on capability, that the employer has quite happily allowed the employee to kind of drift a little bit from a performance perspective, and it's almost the employee's absence that has made the employer realise that they could do without that employee because the performance is so bad. In that situation, it's not the fact that the employee has been pregnant or on maternity leave that’s the reason why they're being dismissed, it’s because the employer has realised really that they can cope without the person. But with the new protections that will be far more challenging, and there is a far greater risk of litigation arising from these situations because employees themselves will feel that they are protected for that additional period of time and so if they are dismissed they are more likely, probably, to challenge a dismissal decision.”

The consultation on ‘Enhanced dismissal protections for pregnant women and new mothers’ and the one on ‘Leave for bereavement including pregnancy loss’ both close on 15 January so you still have a few weeks to put forward your views. You can respond online via the government’s website and we’ve included a link to it in the transcript of this programme for you.

- Links to government consultations

Enhanced dismissal protections for pregnant women and new mothers 

Leave for bereavement including pregnancy loss