The Government has announced that it will introduce new protections against dismissal for pregnant women and new mothers from October 2027. This is a change that was teed up in the Employment Rights Act 2025, creating a regulation-making power but giving no details as to what the new protections would be. The Government carried out a consultation in October last year, however, and the results have just been announced.

What the Government is going to do is create a new test of fairness whenever a woman who is pregnant, on maternity leave, or who has returned from maternity leave in the previous 6 months is dismissed. This will be a day-one right with no qualifying period.

The employer will still have to show that the dismissal is for one of the potentially fair reasons that we are all familiar with (conduct, capability, statutory ban, redundancy, or some other substantial reason) but instead of simply asking whether the employer has acted reasonably,  the question for the Tribunal will be whether the decision to dismiss was a proportionate means of achieving a legitimate aim.

That phrase should sound familiar. It is the test for objective justification that is used in the Equality Act in relation to indirect discrimination or unfavourable treatment because of something arising in consequence of a disability. The advantage of using such a familiar phrase is that we have a reasonably clear idea of what it means. But it is important to realise that it is not just that this presents a higher threshold of reasonableness for employers. It requires tribunals to adopt a fundamentally different approach.

Currently in an unfair dismissal case, tribunals have to apply what we generally refer to as the range of reasonable responses test. They have to ask not whether they would have chosen to dismiss in these circumstances but whether dismissal was one of the options available to a reasonable employer. Crucially the tribunal must not substitute its own view for that of the employer. This means that dismissals that may strike many people as harsh may still be held to be fair.

When it comes to the test of a ‘proportionate means of achieving a legitimate aim’, however, the tribunal’s role is quite different.

This was made clear in the 2005 case of Hardy & Hansons plc v Lax. In that case Lisa Lax – which is a brilliant name – brought a claim for indirect sex discrimination after her request for part-time working was refused. The Court of Appeal held that the test for justification in indirect discrimination was an objective one. Lord Justice Pill said:

“The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the appellants’ submission (apparently accepted by the EAT) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer’s views are within the range of views reasonable in the particular circumstances.” (para 32)

In other words, the Tribunal must take its own view of whether the treatment was proportionate rather than consider the question from the point of view of what a reasonable employer might conclude.

The fact that this test is a higher threshold than you would normally find in unfair dismissal is most clearly shown in the 2018 case of City of York Council v Grossett. In that case the Court of Appeal held that a Tribunal was entitled to find that the dismissal of a teacher was fair under unfair dismissal law but amounted to disability discrimination because the employer had failed to justify it as a ‘proportionate means of achieving a legitimate aim”.  Lord Justice Sales said:

“as the EAT rightly held, there is no inconsistency between the ET’s rejection of the claimant’s claim of unfair dismissal and its upholding his claim under s 15 EqA in respect of his dismissal. This is because the test in relation to unfair dismissal proceeds by reference to whether dismissal was within the range of reasonable responses available to an employer, thereby allowing a significant latitude of judgment for the employer itself. By contrast, the test under s 15(1)(b) EqA is an objective one, according to which the ET must make its own assessment”. (para 54)

This fundamental difference in approach might lead to some odd results. Think of a case where a group of employees are dismissed for taking an unauthorised break. That might be a harsh decision but if the employer has carefully communicated its policy on the matter and has followed a fair procedure, a tribunal might well regard that as falling within the range of reasonable responses. If one of those employees happens to be pregnant, she will be entitled to a different test. The tribunal’s view, making its own assessment (as the Court of Appeal says it must) might be that dismissal is a disproportionate penalty in the circumstances. That could mean that the pregnant woman will be held to have been unfairly dismissed while for the other employees their dismissals will be fair.

Or think of a redundancy situation. Currently it is very difficult for an employee to argue that the employer should not have entered into a redundancy exercise at all. A tribunal would be reluctant to interfere with the employer’s view that redundancies were needed.  But if one of those employees who is made redundant happens to be pregnant or to have recently returned from maternity leave, then that employee will be in a much stronger position to challenge the justification behind the employer’s decision. Similarly if the pregnant employee is selected for redundancy on the application of a range of selection criteria, she will be much better able to challenge the fairness of that assessment than other employees dismissed in the same exercise.

Some people will regard this as unfair. Others will see it as a necessary protection against the disadvantages faced by women who are pregnant, on maternity leave, or who have recently returned to work Whichever view you take it will certainly lead to some interesting case law. Although since the changes will not be made until October next year and the Employment Tribunal system is likely to come under ever increasing pressure in the future, we may be well into the 2030s before that case law emerges.