The UK government has launched two important consultations under the Employment Rights Bill (the ERB), inviting input from employers, workers, and stakeholders on proposed reforms to support employees. The consultations focus on:
- Enhanced dismissal protections for pregnant women and new mothers; and
- Bereavement leave, including for pregnancy loss.
The government’s existing proposals under the ERB represent a significant change in strengthening family and bereavement rights at work.
We take a closer look at the nature and content of both these consultations below.
1. Enhanced dismissal protections for pregnant women and new mothers
Under the current legal framework, employees who are pregnant, on maternity leave, or within an extended protection period following their return (up to 18 months after the child’s birth) have additional protection in redundancy situations. They must be offered any suitable alternative roles in priority to other employees.
The ERB plans to extend protections beyond redundancy, making it unlawful to dismiss pregnant women, those on maternity leave, and mothers for a specified period returning to work (the Protected Period), except in specific circumstances. While dismissals because of or for reasons connected with pregnancy or maternity leave are already unlawful, the enhanced protections would go further, permitting dismissal during the Protected Period only where explicitly allowed by law.
Comparable safeguards may also be extended to individuals taking other forms of statutory family leave (including adoption leave and shared parental leave).
The government is currently seeking views through its consultation on how these enhanced dismissal protections should operate in practice.
Topics covered in the consultation
In what circumstances should dismissals be allowed?
Under the Employment Rights Act 1996, there are currently five potentially fair reasons for dismissal – conduct, capability, redundancy, statutory prohibition and ‘some other substantial reason’ (SOSR). Where an employer can demonstrate that a dismissal falls within one of these categories, it may be considered fair. The consultation seeks views on whether these grounds should continue to apply to pregnant women and new mothers in their current form, whether they should be narrowed or removed, or whether a new tailored test should be introduced.
In its consultation, the government is specifically exploring the following two options for pregnant women and new mothers:
Option 1: Introduce a new general test for fairness
Employers could still rely on existing fair dismissal reasons but would need to meet a stricter standard, such as proving dismissal is necessary to prevent serious harm to the business or other staff.
Option 2: Narrow and/or remove some fair dismissal reasons
Alternatively, the existing five recognised grounds for dismissal could be narrowed - for example, restricting ‘conduct’ to gross misconduct only, removing ‘capability’ as a fair reason (therefore removing “poor performance” as a fair reason during the Protected Period), eliminating SOSR and/or confining redundancy to exceptional circumstances such as business closure or insolvency. For dismissals because of a statutory prohibition (used rarely in practice), the government is considering additional safeguards, such as mandatory redeployment where possible.
Of course, these options come with challenges, and the consultation seeks to give examples of some of the problems that might occur if Option 2 is pursued. For example, where an individual is consistently underperforming (particularly where the underperformance started before the individual went on maternity leave) employers may question why they should not be permitted to dismiss in that scenario.
When should the Protected Period start and end?
The consultation seeks views on when the proposed enhanced protections should apply.
Protection trigger
Existing protections for pregnant women and new mothers apply from day one of employment. If new enhanced dismissal protections also started immediately, employers may need to retain and pay employees throughout pregnancy, maternity leave, and following their return, even where dismissal might otherwise be justified, which could create an unreasonable burden. To mitigate unintended consequences, the government is considering a qualifying period of three to nine months. However, delaying protection could leave early-stage employees vulnerable and create inconsistency with other rights (which in and of itself is potentially confusing for employers and employees).
Protection end point
The government is consulting on how long the proposed enhanced protections should last after childbirth. Existing protections on redundancy provide an 18-month protection window from birth or adoption placement and the consultation asks for views on replicating this period for the new enhanced dismissal protections. An alternative proposal would be to set the protection to six months after returning to work (regardless of how long the maternity leave was for). The consultation is also seeking views on whether similar safeguards should apply to those without maternity leave entitlement (e.g. those who suffer a miscarriage).
Other parents
The consultation also considers whether enhanced dismissal protections should apply to other categories of extended family leave. These include Adoption Leave, Shared Parental Leave, Neonatal Care Leave, and the forthcoming Bereaved Partner’s Paternity Leave – but not seemingly normal paternity leave.
Other considerations
The consultation raises important questions about how the proposed protections will work in practice and what support is needed to make them effective.
The government is therefore considering how to best:
- raise awareness of the new protections amongst pregnant women and new mothers;
- support businesses, especially smaller employers, in adapting to the changes through clear guidance and practical tools; and
- prevent unintended consequences, such as hiring hesitancy, workplace tension, or legal uncertainty.
2. Bereavement leave, including for pregnancy loss
The ERB also introduces a new day one statutory right to bereavement leave – at least one week of unpaid leave following the loss of a loved one. Recent amendments extend this right to pregnancy loss, including miscarriage or stillbirth before 24 weeks and failed embryo transfers during IVF. The ERB sets out minimum standards, including a 56-day window for taking leave, protection against unfair treatment or dismissal, and preservation of contractual rights during leave.
The consultation explores how these provisions should operate in practice and considers the government’s specific proposals to ensure the policy balances flexibility with clarity. Recognising that grief is deeply personal, the government’s stated aim is to provide security and choice - acknowledging that some may wish to return to work quickly, while others need more time away from work.
The bereavement leave consultation is centered on three key areas:
- Eligibility - determining who should qualify for bereavement leave, including what relationships between the employee and person who has passed away should qualify for bereavement leave and specific circumstances such as different types of pregnancy loss;
- Timing and flexibility - considering when and how the leave can be taken, including the start and end dates of the entitlement and the level of flexibility required; and
- Notice and evidence requirements - exploring what notice and evidence should be needed (if at all) to access bereavement leave, and how the government can best support employers in implementing the policy.
The ERB measures are scheduled for implementation in 2027, and both consultations will close on 15 January 2026.
For information on the ERB and its implications on employers, please see a summary of the key changes here and download our detailed ERB briefing here. Please contact your usual Freshfields contact should you wish to discuss anything in this blog post.
