HR Newsletter 179: Dismissing pregnant employees and new parents: a tougher test from October 2027

From October 2027, dismissing an employee who is pregnant, on maternity or other family leave, or recently back from that leave, will be even harder to defend, than it already is. The Government has confirmed that a new, stricter test of fairness will apply to these dismissals, and it will apply from day one of employment.

The Employment Rights Act 2025 gave the Government the power to introduce these protections but said nothing about what they would look like. Following a consultation that ran in October 2025, the Government has now published its response, and we have a much clearer picture. This article explains what is changing, who is covered, and why this is a more significant shift than it might first appear.

What is changing

During a protected period, an employer will have to show that dismissal was a proportionate means of achieving a legitimate aim. This replaces the usual question of whether the employer acted reasonably.

The five potentially fair reasons for dismissal remain: conduct, capability, redundancy, statutory restriction and some other substantial reason. You will still need one of them. What changes is how a Tribunal judges the decision once you have it.

In practice, employers will ordinarily need to show that there was no reasonably viable, less discriminatory alternative, such as adjusted duties or a suitable alternative role. The size and circumstances of the business will be taken into account, so a small employer will not be held to the same standard as a large one, but even so, there must always be a fair dismissal.

This is a day-one right, with no qualifying period. The regulations themselves will not spell out how the test works; that will be left to new ACAS guidance.

Who is protected, and for how long

The protection is wider than pregnancy and maternity. It also covers adoption, shared parental, neonatal care and bereaved partner's paternity leave, although the rules differ slightly for each.

Situation	Protection starts	Protection ends
Pregnancy and maternity leave	When the employee tells you she is pregnant, verbally or in writing	Six months after maternity leave ends (18 months from birth if all 52 weeks are taken)
Pregnancy ending before 24 weeks	When the employee tells you she is pregnant	Two weeks after the pregnancy ends
Adoption leave	First day of leave	Six months after leave ends
Shared parental, neonatal care or bereaved partner's paternity leave	First day of leave	When leave ends, or six months after, if at least six continuous weeks were taken

Note that the protection starts as soon as an employee tells you she is pregnant, and a conversation is enough. Managers need to understand that an informal mention counts.

Why this is a fundamentally different test

The phrase "proportionate means of achieving a legitimate aim" will be familiar to anyone who knows the Equality Act 2010. It is the test used to justify indirect discrimination, and discrimination arising from disability. That familiarity helps because we know broadly what it means. But it is important to understand that this is not simply a higher bar for employers. It changes the Tribunal's role entirely.

In an ordinary unfair dismissal claim, Tribunals apply the "range of reasonable responses" test. The question is not whether the Tribunal would have dismissed, but whether dismissal was an option open to an employer, acting reasonably. Crucially, the Tribunal must not substitute its own view rather than the employers. That is why dismissals that seem harsh can still be fair.

The proportionality test works differently. In Hardy & Hansons plc v Lax (2005), the Court of Appeal confirmed that the Tribunal must take account of the business's reasonable needs, but must then make its own judgment, based on a detailed look at the working practices and business reasons involved. It is not enough that the employer's view fell within a reasonable range.

City of York Council v Grossett (2018) shows how far apart the two tests can be. A Tribunal found that a teacher's dismissal was fair under unfair dismissal law, but was still disability discrimination, because the employer could not show it was proportionate. The Court of Appeal saw no contradiction: one test gives the employer considerable latitude, the other requires the tribunal to make its own assessment.

What this could mean in practice

The two tests running side by side could produce some uncomfortable and potentially surprising results.

Misconduct. Suppose several employees are dismissed for taking an unauthorised break. If the policy was clearly communicated, and a fair procedure followed, a Tribunal may well find dismissal within the range of reasonable responses, even if it seems harsh. But if one of those employees is pregnant, the Tribunal will make its own judgment, and it may decide dismissal was a disproportionate penalty. She could succeed in an unfair dismissal claim while her colleagues, dismissed for exactly the same thing, would not.

Redundancy. At present, Tribunals rarely question an employer's decision that redundancies are needed. An employee in a protected period will be in a much stronger position to challenge the business case behind the exercise. If she is selected using scoring criteria, she will also find it easier to challenge how she was assessed. Employers will need to show they looked properly at alternatives, such as a different role or adjusted duties, before dismissing.

These protections sit alongside the rules already in place, including the right of employees on, or recently back from, family leave to be offered a suitable alternative vacancy ahead of colleagues in a redundancy situation.

What employers should do now

There is a year before the changes take effect, which is enough time to prepare properly.

1.    Train your Managers. They need to know that a passing mention of pregnancy starts the protected period, and that any dismissal decision involving someone in that period needs HR input before it is made.

2.    Know who is protected. Keep accurate records of who is pregnant, on family leave, or within six months of returning, so these cases are flagged early.

3.    Document the alternatives. For any dismissal in a protected period, record what alternatives you considered, such as adjusted duties or a different role, and make a written note of why they were not workable.

4.    Review your redundancy process. Make sure the business case is written down and selection criteria are objective and evidenced. Expect them to be tested more closely.

5.    Watch for the ACAS guidance. It will shape how the test works in practice, and we will update you when it is published.

If you are considering dismissing anyone in a protected period, please talk to us first.

Final thoughts

Some will see this as unfair to employers, and to colleagues dismissed in the same circumstances who do not get the same protection. Others will see it as a necessary response to the real disadvantages faced by people who are pregnant, or juggling a new family alongside work. Either way, it will produce some interesting case law. With the changes not arriving until October 2027 and Tribunals under growing pressure, that case law may not emerge for some time afterwards, possibly into the 2030s, so employers will be relying on the ACAS guidance, and good advice, for some time.

Clients are welcome to raise any concerns with our Consultant team, who would be pleased to advise you on any element of the issues arising from this newsletter.