Enhanced maternity protection - What do we know?

The consultation explores how the current five potentially fair reasons for dismissal could be restricted for pregnant women and new mothers. 

One option being considered is that employers would still be able to rely on the existing fair reasons for dismissal but would also be required to meet a new stricter test of fairness e.g. showing dismissal was necessary to avoid serious harm to the business or to other staff.

A second option would involve limiting the five potentially fair reasons for dismissal for pregnant women and new mothers.  Options which have been suggested include:

• Conduct – dismissal should only be permitted for gross misconduct, but the consultation acknowledges that questions remain on how to deal with repeated lower-level misconduct and how to treat conduct which occurred before the protected period and/or continues during the protected period. Other options considered are allowing conduct dismissals if continued employment poses a health and safety risk to staff, customers or the public or has a serious negative impact on the wellbeing of others or causes significant harm to the business.
• Capability – removing this as a potentially fair reason for dismissal for pregnant women and new mothers, but again this poses serious challenges for businesses e.g. where poor performance pre-pregnancy does not improve and then continues into pregnancy. One other option put forward is to allow capability dismissals if the employer can clearly show the employee won’t be able to do the job after the protected period ends. (See also other options under SOSR below)
• Redundancy – keeping the current requirement to offer any suitable alternative role but, if that is not possible, then a fair redundancy dismissal should be confined to situations of pressing need e.g. business closure, site closure, insolvency or bankruptcy or severe financial difficulty.
• Where it would be illegal to continue to employ someone – employers should still be able to dismiss on this ground, but only if there is no suitable alternative role available, or one was offered and turned down.
• Some other substantial reason (SOSR) – this is a broad category which is context specific, but a range of options has been suggested including not applying it to pregnant women and new mothers. Options put forward for capability and SOSR dismissals include allowing such dismissals but:
  • only if there is no suitable alternative role available (or one was offered and turned down) or
  • if continued employment would seriously harm the business or  if continued employment poses a health and safety risk or
  • if continued employment has a serious negative impact on the wellbeing of others.

While existing protections against dismissal for pregnant women and new mothers are all accessible from day one, the consultation seeks views on whether employees should be entitled to the enhanced dismissal protections from when they agree with an employer that they will start work with them or from day one or whether entitlement should be after an initial period of employment.  The consultation acknowledges that where an employee has not yet had the opportunity to demonstrate their capability, it would be unreasonable for an employer to have no recourse to dismissal for poor performance.

Current protections start from when the employee tells the employer she is pregnant, but the consultation asks further questions on whether protection should start before that as pregnancy can affect attendance or behaviour at work even before the employee knows she is pregnant.  

The consultation also seeks views on whether protection should end 18 months from the birth of the child (in line with current enhanced redundancy protection for new mothers) or 6 months from the return to work, and 2 weeks after early pregnancy loss.

The consultation seeks views on whether the proposed enhanced dismissal protections should also cover employees taking adoption leave, shared parental leave, neonatal care leave and bereaved partner’s paternity leave.

The consultation acknowledges that some thought needs to be given to the potential adverse effects of the new proposals.  For example, it could lead to increased discrimination if employers are hesitant or choose to avoid employing women of childbearing age because of the new protections or it could create workplace tensions if pregnant women and new mothers are perceived as having undue protections against dismissal.