The Employment Rights Act 2025 included a provision for regulating around protection from dismissal during or after a protected period of pregnancy, maternity or other family leave.
The Government has now published its response on this. We now have a better idea of that these reforms may look like.
From October 2027 dismissing someone on maternity leave or who is pregnant or on other qualifying family leave will require justification along the lines of the justification defences required by the Equality Act 2010. This means that during the protected period an employer will have to show that the dismissal was a proportionate means of achieving a legitimate aim. In short, was there no alternative to dismissal? Employers will be required to show that no viable less discriminatory alternative was possible including a suitable alternative role or adjusted duties. This places a greater burden on employers to justify dismissals of new parents. The size of the employer and the extent of its available resources will be relevant (read from this that the larger your organisation the harder it will be to show the dismissal is objectively justified).
Regulations will not define how the objective justification test will work in practice but we anticipate Acas guidance to emerge on this.
Employees will be eligible for this right from day one of employment including in the case of adoption. No period of qualifying service will be required.
The protected period starts when the employee tells their employer they are pregnant. This can be done orally or in writing.
The protected period will last for 18 months from birth where all 52 weeks of maternity leave is taken, i.e. the period will be extended for a further six months beyond mat leave.
If a pregnancy should end before 14 weeks, the protection will continue only for two weeks from the end of the pregnancy.
Shared parental leave, neonatal care leave and bereaved partner’s paternity leave will also be covered from day one and protection will continue for 6 months after leaves end provided at least 6 weeks’ continuous leave has been taken.
This is welcome news for parents who continue to be targeted after taking time off for maternity and parental reasons. We welcome it and hope that it will stem the tide of dismissals of new parents who take leave when they are in good standing with their employer and return to find they are no longer required. We deal with this work routinely in our job as employment lawyers and as a mother myself this is an area of legal protection I am passionate about.
