We all know that it is unlawful to dismiss an employee either because she is pregnant, for a reason connected with her pregnancy or because she has taken maternity leave. In fact the combination of the pregnancy and maternity provisions of the Equality Act 2010 or the unfair dismissal provisions in Regulation 20 of the Maternity and Parental Leave etc Regulations 1999 means that employees who are pregnant or have recently given birth are pretty well protected against dismissal (on paper, at least).

So why have the Government just launched a consultation on “Enhanced Dismissal Protections for Pregnant Women and New Mothers”? What problem are they seeking to address? 

Labour’s pre-manifesto policy document – ‘Labour’s Plan to Make Work Pay’ – said:

‘Labour is committed to strengthening protections for pregnant women by making it unlawful to dismiss a woman who is pregnant for six months after her return, except in specific circumstances. This will give new mothers certainty that the law is on their side.’

And that was all it said. No analysis of what the law currently is, why it is unsatisfactory or what ‘specific circumstances’ might be appropriate when considering the dismissing an employee who is currently or recently pregnant. 

The reference to ‘specific circumstances’ is interesting. Article 10 of the EU Pregnant Workers’ Directive says

“1. Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8 (1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice”

While we were in the EU there was an argument that UK law did not go far enough. It prohibited discrimination because of pregnancy but did not provide that dismissal of pregnant women was only allowed in ‘exceptional circumstances’. Is the ‘Making Work Pay’ proposal an echo of that concern? 

We are no longer bound by the Pregnant Workers Directive, but in any event it seems that our law was probably fine anyway. In 2018 the European Court of Justice ruled in Porras Guisado v Bankia SA that provided the dismissal was not connected with the pregnancy and the employer gave substantial reasons for it in writing there was no breach of the Directive. In the UK pregnant workers are indeed entitled to written reasons for dismissal (see S.92 Employment Rights Act) and if those reasons are connected with pregnancy the dismissal will be unfair.  So there is no international standard that requires dismissal only be allowed in ‘specific circumstances’   

What the Employment Rights Bill provides

When the Employment Rights Bill was published the new Government’s policy was reflected in a Regulation-making power. The Bill amends S.49D of the Employment Rights Act 1999 which is the statutory basis for the 1999 Regulations dealing with the duty to offer suitable alternative work in relation to an employee who becomes redundant during pregnancy, maternity leave or within 18 months of the birth of a child. Essentially the power to make regulations is extended so that instead of just covering redundancy they can cover any dismissal ‘during or after a protected period of pregnancy’. It pretty much gives the Minister a free reign in deciding what additional protections against dismissal should be introduced. 

But that still doesn’t answer the question: what shortcoming in the law is this consultation intended to address? Nobody sought to answer that question as the Bill went through Parliament. Indeed in Committee, Conservative shadow minister  Greg Smith said: 

“ I think this is one of the least contentious parts of the Bill, and we do not seek to oppose in any way the important protections for pregnant women and new mothers”

Which is fine – and very generous given that he could not be expected to know what these important protections will actually be. 

What the new consultation is about

The consultation that was launched last week gave the Government an opportunity to explain exactly where they think the current law is lacking and what extra protections are needed. Do they set out a clear case? Take a guess.

It seems to me that there are two possible bases for amending the law on pregnancy dimsissals. 

The first is that despite the prohibition on dismissals connected with pregnancy, there is evidence that such dismissals remain a problem and so the law needs to be changed to make it easier for claimants to assert the rights that they currently enjoy in theory but do not always benefit from in practive. 

The second is that the law is currently insufficient in that it allows for employees to be lawfully dismissed in circumstances where a dismissal should be unlawful. In other words that there is a gap in the law that needs to be filled. 

It looks as though the Government is relying on the first ground as justifying action:

“While legal protections against dismissal related to pregnancy and maternity already exist. And was strengthened in 20/23/24 to include enhanced redundancy protections. Many expectant and new mothers continue to report experiences that suggest unfair treatment persists.

This is deeply concerning and highlights the need for further action. That is why this government will put in place legislation that makes it unlawful to dismiss pregnant women, mothers on maternity leave and mothers who return to work for at least the six-month period after they return (“The protected period”) except in specific circumstances.”

The problem however is that having identified the problem of unfair treatment persisting despite the law that is already in place, the Government assumes that the answer is to widen the law rather than look at issues of enforcement. Not only that, but the consultation is not informed by any clear idea of what circumstances justify dismissing someone during the ‘protected period’. Rather, we are being asked what the ‘specific circumstances’ under which dismissal is permitted should be. 

A new test of fairness?

The consultation basically offers up two options for considertation. Option 1 would introduce a new test of fairness that would apply to all dismissals of protected employees. This would be a stricter standard than the current test of reasonableness. 

Here is what the Government suggests under this option: 

35. Option 1: Introduce a new general test for fairness 

Under this option, employers would still be able to rely on any of the existing fair reasons for dismissal, but they would also be required to meet a new stricter standard when relying on that reason to dismiss a pregnant woman or new mother. 

Example: Employers could still be required to show a fair reason, and also show that letting someone go is, for instance, necessary to avoid serious harm to the business or other staff.

And that is it. No other discussion of ‘Option 1’ is set out in the consultation. Nowhere does the consultation expand on what ‘serious harm’ to the business might mean. And of course this is only an example of what the stricter test might be. The Government is inviting other suggestions as to what test should apply – which very open minded of them – but really serves to emphasise that the Government does not have a clear idea of what problem it is trying to solve. 

Limiting the reasons for dismissal?

There is a much more detailed discussion of Option 2 – but mainly to point out what a bad idea it is. Option 2 is expressed as narrowing the scope for dismissal or ‘removing some of the fair dismissal reasons’. This refers to what are generally known as the ‘potentially fair reasons for dismissal’ set out in S.98 of the Employment Rights Act 1996. Technically they are categories of reason rather than reasons in their own right, but don’t get me started on that point. To all intents and purposes the employer msut show that the dismissal was for one of the following reasons: 

• Conduct
• Capability
• Statutory Ban
• Redundancy 
• SOSR (often pronounced ‘sozzrer’ this stands for ‘some other substantial reason’)

So under Option 2  one or more of the reasons on this list would not be available to an employer who had dismissed a protected employee. The Government accepts that this would lead to difficulties and gives a number of examples illustrating this. 

Let’s take conduct. The suggestion is that the law might only allow for dismissal in cases of gross misconduct rather than ordinary misconduct. Quite fairly the Government then asks about dismissals for multiple instances of ordinary misconduct. Here is the first hypothetical example it comes up with. 

“Example A. An employee repeatedly ignores safety protocols in the workplace, such as failing to wear required protective equipment. On two separate occasions, the employee receives a formal warning in line with the employer’s disciplinary policy. Shortly after receiving the second warning, the employee informs her employer that she is pregnant. During the predicted period to the employee again disregards a key safety rule and this incident results in the minor injury to a colleague. Several team members raised concerns with management, stating that the repeated behaviour is creating an unsafe work environment and affecting morale.”

Or how about this?

“Example B. A pregnant employee uses insensitive language relating to race in front of their team. A single incident of using this specific language would not usually be sufficient for dismissal, according to the employer’s policy on conduct, but it would usually merit a final written warning. A month later, while still pregnant and at work, the employee uses the same form of words again in front of a customer who complains to management.”

I think these examples neatly illustrate That carving out some sort of exception under which pregnant employees could not be dismissed for misconduct in the same way as their colleagues would be completely unworkable. Surely nobody is going to suggest that a pregnant employee should have more licence to use racist language in front of customers than someone who is not pregnant?

Issues around capability are more complex. Clearly, there are circumstances in which the fact that someone is pregnant will affect the way in which they do the job and can also affect their attendance. Issues of performance may also arise when an employee returns to work after the extended period of leave – particularly if there has been a change in the way the work is organised or performed while the employee was away. It is important to remember that to a large extent, the law already protects women in these circumstances. Pregnancy related absence cannot be taken into account when dismissing an employee for poor attendance. And where pregnancy has affected the employee’s performance in the role any dismissal would be likely to amount to discrimination as well as being automatically unfair. 

What is this all for?

The truth is I just don’t understand what the Government is trying to achieve by changing the law. Is the argument that employees who happen to be pregnant should be protected from dismissal in circumstances where the dismissal is not in any way related to their pregnancy? Or is the underlying justification for a special rule protecting pregnant employees and new mothers that while they may be protected on paper, they are not necessarily protected in practice? 

If it is the latter then surely any change in the law needs to focus on how existing rights can be enforced. I appreciate that asking for a swift and efficient Employment Tribunal system is unrealistic, but perhaps the law could do something to make it easier for dismissed employees to win their case? I can quite see that a current problem might be that an employer could make an employee redundant without giving any indication that the decision was prompted by their pregnancy or maternity leave but where the employee strongly suspects that there was a link. If we want to address that issue then maybe we should focus on the burden of proof rather than the definition of when a dismissal will be fair. 

Suppose you provided that if an employee is dismissed during the ‘protected period’ it falls to the employer to prove that pregnancy or maternity played no part in the decision to dismiss. If the employer passed that test the Tribunal could go on to consider the fairness of the dismissal in the normal way. If it could not, then the dismissal would be unfair. 

In a case of gross misconduct, passing the test should be straightforward. A Tribunal might easily be persuaded that anyone who, for example, stole money from the till would be dismissed and that the employee’s pregnancy was neither here nor there. On the other hand an employer who dismissed an employee whose output suffered in the later stages of her pregnancy might struggle to prove that her poor performance was unconnected with her condition. In cases of redundancy the Tribunal could take some persuasion that the selection of the employee had nothing to do with the fact that she was pregnant or on maternity leave.

Choosing Option 3

Of course employers already have to prove the reason for dismissal under unfair dismissal law, but I still think that placing a particular burden on employers who have dismissed a pregnant employee (or someone on leave etc) would move the dial significantly in the employee’s favour. It would go further, for example, than the convoluted burden of proof provisions in the Equality Act which could also be amended to keep the test consistent. It would also have the advantage of not interfering with the fundamental test of when the dismissal of an employee is fair, would be easy to draft and would not involve employers having to apply different rules or procedures to different employees when contemplating dismissal. 

As an added bonus, such a change would bring UK law into line with Article 8 of the International Labour Organisation’s Maternity Protection Convention (No 183) which provides:

“It shall be unlawful for an employer to terminate the employment of a woman during her pregnancy or absence on leave referred to in Articles 4 or 5 or during a period following her return to work to be prescribed by national laws or regulations, except on grounds unrelated to the pregnancy or birth of the child and its consequences or nursing. The burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing shall rest on the employer.”

So given the choice between Option 1 and Option 2, I am going to add in Option 3 – placing the burden of proof on the employer to show that the dismissal was unrelated to pregnancy or maternity. Will making such a change solve the problem? Of course not. But the problem is not really the result of the current rights being too narrow. If employers can still dismiss employees for reasons connected with their pregnancy or maternity leave then that is a failure of the system we have developed to enforce and uphold existing rights. I don’t think anything suggested in this consultation is likely to address that.