Government launches four Employment Rights Bill consultations

• Enhanced dismissal protections for pregnant employees and new mothers.
• Bereavement leave including pregnancy loss.
• Duty to inform workers of right to join a union.
• Trade union right of access.

The proposals set out in these consultations are highly significant. In particular, the proposals for trade unions to access the workplace are far reaching, and the consultation proposes very substantial fines for non-compliance. We would encourage readers to engage with the consultations either directly online via the links below, or by speaking to your usual DAC Beachcroft contact.

The consultations on protections from dismissal for pregnant employees and new mothers, and bereavement leave, are open until 15 January 2026, while those on the trade union measures are open until 18 December 2025.

Enhanced dismissal protections for pregnant employees and new mothers

The ERB provides that employers will be prohibited from dismissing an employee who is pregnant, is on maternity leave, or has returned from maternity leave within the past six months, except in certain specified circumstances.

The government intends to bring the new protections into force in 2027, to give employers sufficient time to prepare. The consultation closes on 15 January 2026 and the government will then need to respond, so it is likely to be some time before we see draft regulations setting out the detailed provisions the government decides to take forward.

The consultation considers in what specific circumstances dismissal of pregnant employees and new mothers should be permitted, as well as when the protections should start and end. It also seeks views on how best to make pregnant employees and new mothers aware of their rights, ways to support businesses to adapt to the change in the law and mitigate against possible unintended consequences, and what other changes the government should make to tackle pregnancy and maternity discrimination.

When addressing the circumstances in which the dismissal of pregnant employees and new mothers should be permitted, the consultation refers to the current five potentially fair reasons for dismissal under the Employment Rights Act 1996 (i.e. conduct, capability, redundancy, illegality, and some other substantial reason (SOSR)) and asks stakeholders to comment on two proposed approaches.

The first would be to introduce a new, tailored, test to assess fairness where a pregnant employee or new mother is dismissed for any of the five potentially fair reasons. For example, this could involve requiring employers to show that the dismissal for the specified reason is necessary to avoid serious harm to the organisation or other staff.

The second would involve restricting the applicability of the existing five reasons to dismissals of pregnant employees and new mothers or, even removing some reasons altogether. The consultation gives several possible suggestions here:

• The 'conduct' ground could be narrowed so as to apply only in cases of gross misconduct. However, this could give rise to difficulties for employers where an employee commits lower level misconduct and is issued with a final written warning before she becomes pregnant, and then repeats that misconduct during her pregnancy. Where ordinarily an employee who has a live final written warning could be fairly dismissed for the further misconduct, the employee in this scenario could not be.
• Capability could be removed as a fair reason so as to prevent dismissals for poor performance. However, where an employer has sought to support an employee to improve her performance but these support measures have not been successful, requiring the employer to keep the employee on because she is pregnant places a potentially significant burden on the organisation.
• The availability of redundancy as a fair reason could be narrowed. This might involve restricting redundancy dismissals of pregnant employees and new mothers to situations of "pressing need" such as business closure, site closure, insolvency, actions taken to avoid severe financial difficulty, or circumstances where there are no viable alternative roles available even after significant efforts to redeploy. This proposal would significantly limit employers' ability to reorganise their operations to respond to changing demands.
• SOSR could be removed as a fair reason. Alternatively, it could be narrowed so that it only applies where, for example, no suitable alternative role is available for the employee, a suitable role has been offered but turned down, continuing employment would seriously harm the business, or continuing employment would pose a health and safety risk. The consultation notes that as an open-ended and context-specific category, SOSR is hard to define, and says that this "raises important questions about how, or whether, it should apply to pregnant women and new mothers during the protected period".

As for when protection should start and end, the consultation asks:

• Whether the protections should be available from day one of employment. This would be consistent with other protections for pregnant employees and new mothers (e.g. protection from discrimination), but may place quite a substantial burden on employers.
• At what point the protection should start for pregnant employees, i.e. when they tell their employer they are pregnant, when they become aware of their pregnancy, or when they become pregnant (even if they are not aware of their own pregnancy). Given the practical difficulties that could arise if protection applies before an employee has informed the employer of her pregnancy, it seems surprising that the government is considering this as an option.
• How long the protection should last after a mother returns from maternity leave. The approach favoured by the government would be for protection to continue for 18 months following the date of the child's birth. This would be consistent with the priority right to suitable alternative vacancies that applies to maternity returners in a redundancy situation.

The consultation notes that the appropriate approach will strike a balance between employee protections and operational needs, and acknowledges the risk that, if employers perceive the new provisions as too restrictive, they may become hesitant to hire women of child-bearing age. It also accepts that providing special protection to pregnant employees and new mothers could give rise to perceived unfairness, straining workplace relationships and leading to more discrimination against women at work. Guidance and training are suggested as possible ways to mitigate these potential unintended consequences.

It is also important to flag that the ERB includes a power for the government to make regulations extending equivalent protection to employees who are on or returning from other forms of family-related leave. The consultation seeks views on whether or not the government should exercise this power and, if so, how the protections should apply to the different forms of family-related leave. For example, it suggests that protection for employees who have taken shared parental leave (SPL) could be applicable only if they have taken at least six consecutive weeks of SPL, as is the case with priority rights to suitable alternative vacancies in a redundancy situation.

The consultation response platform can be found here: Make Work Pay: leave for bereavement including pregnancy loss

Bereavement leave, including pregnancy loss

Under the ERB, a statutory right to at least one week of unpaid bereavement leave on the death of a close relative will be introduced, as a day one right. This will also apply to employees who suffer pregnancy loss before 24 weeks. (The current day one right to two weeks' paid parental bereavement leave on the death of a child under the age of 18 or the loss of a pregnancy after 24 weeks will remain in place.)

The government intends to bring the new right to bereavement leave into force in 2027. The government has confirmed that its aim is to ensure that the final entitlement works well for employers and employees who need it. After the consultation closes, on 15 January 2026, the government will then need to respond and take some time to prepare draft regulations setting out the final provisions.

The consultation considers questions of eligibility for bereavement leave, its duration and when it should be taken, and any notice and evidential requirements that might be applied.

On eligibility, the consultation asks:

• What relationships between the employee and the person who has died should qualify for the bereavement leave entitlement. Options suggested include immediate family members, extended family members, and others such as foster carers, kinship carers and close friends.
• Whether entitlement to bereavement leave in cases of pregnancy loss should be restricted to the person who has physically experienced the pregnancy loss and, if not, who else the entitlement should extend to.
• Which types of pregnancy loss should be covered. The government suggests that this could include miscarriage, ectopic pregnancy, molar pregnancy, medical terminations, and IVF embryo transfer loss.

With regard to the proposed duration of bereavement leave, and when it should be taken, the consultation asks:

• Given that the one week period provided for in the ERB is intended as a minimum, whether unpaid bereavement leave should be one week, two weeks, or an alternative duration.
• Whether employees should be offered the same amount of leave in all cases, or whether this might differ depending on the employee's relationship to the deceased, and/or whether the leave relates to the loss of a loved one or to pregnancy loss.
• When bereavement leave should become available – for example, from the date of death or pregnancy loss, or the date the employee becomes aware of the death or pregnancy loss.
• Whether the employee should have to take the leave in one continuous block, or whether they should be allowed to take it discontinuously (e.g. in blocks of one week, or units of one day).
• For what window of time the leave should be available – for example, 56 days (which is the minimum period specified in the ERB), or a longer period such as a year, or 56 weeks (as is the case for parental bereavement leave).

On notice and evidential requirements, the consultation asks:

• Whether employees should be required to give their employer notice of their intention to take bereavement leave and, if so, whether shorter notice would be appropriate for leave that is taken immediately following the death or pregnancy loss, than for leave that is taken at a later date.
• Whether any notice should have to be provided in writing.
• Whether employees should be required to provide any evidence of a bereavement to their employer, whether the employer should have the right to request evidence, and/or whether the employee should have to sign a declaration confirming their eligibility to take bereavement leave and their reason for doing so.

The consultation response platform can be found here: Make Work Pay: leave for bereavement including pregnancy loss.

Duty to inform workers of right to join a union

The ERB will introduce a new duty (the new duty) on employers to give a written statement to their workers informing them of their right to join a trade union at the start of their employment and at other times.

The consultation states that the government's intention is for the new duty to start by October 2026. The government also states in the consultation that it believes this will give employers enough time to prepare properly. The consultation closes on 18 December, and a consultation response will then be required so we will not have final details of how this new duty will work for some time. 

This consultation seeks views on how the new duty should work in practice. This includes:

• What content should be included in the statement. The consultation proposes that the statement should include: i) a brief overview of the functions of a trade union; ii) a summary of the statutory rights in relation to union membership; iii) a list of any trade unions that the employer recognises; and iv) a signpost to a Gov.UK page with a list of trade unions.
• What form the statement should take. The consultation asks for views on whether a standard written statement provided by the government, or an employer drafted statement should be used. The standard written statement is the government's preferred approach. The proposal is that this standard form would set out the required statutory information with space for employers to add workplace specific details (such as which trade unions are recognised by that employer). While noting that the employer drafted statement is in line with current employment law practice, the view expressed in the consultation is that the employer drafted approach carries a risk that the information may not be provided in a neutral way, and adds an administrative burden on employers.
• The manner in which the statement must be delivered. The consultation asks for views on whether the statement should be delivered to new workers directly alongside the statement of employment particulars, or indirectly such as by posting the statement on a staff notice board, staff portal or intranet. The government's preferred approach is the direct delivery option, as its view is that this will ensure new workers are aware of their rights at the start of their employment and it will be easier for employers to demonstrate compliance. Three options are explored regarding how to deliver the statement to existing workers: i) directly by letter or email; ii) directly or indirectly; or iii) directly or indirectly with a reminder for example every 6 months or annually. The government's preferred option is directly or indirectly without the requirement for a reminder. In the government's opinion, this would give employers the flexibility to choose the approach that most suits the needs of their workers and workplace.
• How often the statement must be reissued after the beginning of employment. The options presented in the consultation are: i) every six months; ii) annually; or iii) sector specific frequency. The government's preference is annually. The government believes this would ensure that workers are reminded within a reasonable timeframe and would be reasonable for employers to comply with.

The consultation response platform can be found here: Make Work Pay: Duty to inform workers of their right to join a trade union.

Trade union right of access

The ERB will introduce a new framework for trade unions to access workplaces physically, and to communicate with workers in person or digitally. ‘Digital’ access for the purposes of this consultation refers to communication, whether directly or indirectly, that does not involve physical access to the workplace. This could include, for example, meeting workers through an IT platform or providing hard copy information to workers via the employer.

The consultation document states that the government wants these changes to take effect by October 2026. Following the consultation secondary legislation will set out the final details. The government will be consulting on a new statutory Code of Practice in Spring 2026 which will set out best practice and include practical guidance on how access should be carried out by both trade unions and employers.

The consultation document makes it clear that, while providing a statutory framework for access under the ERB the government wants to see employers and unions continue to agree and use voluntary access arrangements outside of this statutory framework where possible.

This consultation seeks view on:

• How unions will request access, and how employers respond. The government's proposal is that access requests and responses should be made directly in writing, for example via an email or letter, using standardised templates which will be provided as part of the new Code of Practice on Trade Union Right of Access.
• What information is contained within the access request and response.
• Notifying the Central Arbitration Committee (CAC) that access has been agreed, varied or revoked.
• The time limits for responding to, negotiating and referring matters to the CAC. The proposal is that employers have 5 working days to respond to a union’s request for access either accepting the terms of access or refusing the terms of access. The period of time between when the employer’s response is given and when the parties must conclude negotiations on the terms of access is proposed as 15 working days. If an employer does not respond/terms are not agreed within this period, then the CAC can, upon notification from the trade union, begin its process of deciding whether or not access takes place. The consultation also proposes a limit of 25 working days starting from the day the request for access is submitted after which a party can no longer submit a request for the CAC to make a decision. This would mean that an employer or union has a minimum of five working days to request that the CAC make a decision on whether access takes place or not following the response and negotiation period.
• Factors the CAC will take into account when determining whether access should be granted, and on what terms. One factor which is being consulted on is whether an access application that would require an employer to allocate more resources than is necessary to fulfil the agreement (e.g. constructing new meeting places or implementing new IT systems) should be regarded as a reasonable basis for the CAC to refuse access.
• Circumstances where access must not be granted by the CAC, including the size of employer. The government's proposal is that employers with fewer than 21 workers should be excluded from the new right of access. The proposal is also that where an employer already recognises an independent trade union to negotiate on behalf of the group of workers in question, the CAC should consider that a reasonable basis on which to refuse access.
• Whether a period for the employer to prepare for access should be given. The government's proposal is that a period of 5 working days from the notification of the CAC’s decision is provided for, and it is asking for views on whether this should be specified in the access agreement.
• Whether the access agreement should have an expiry date. The government proposes that the expiry period should be a maximum of 2 years, starting from the day that the access agreement comes into force.
• What terms should be contained in an access agreement. In respect of the frequency of access, the government proposes that weekly access (physical, digital or both) is reasonable, and that access agreements include a commitment from the union to provide at least two working days’ notice to the employer before access takes place.
• How the CAC is to come to decisions on the value of fines issued for breaches of access agreements. Two options are being considered: a maximum fine of £75,000 or a two-stage system: £75,000 for an initial breach and up to £150,000 for repeated breaches.

The consultation response platform can be found here: Make Work Pay: Right of Trade Unions to Access Workplaces

What does this mean for employers?

The proposed new protections for pregnant employees and new mothers could significantly limit employers' ability to manage their workforce, especially if the potential to dismiss fairly for capability, redundancy, and SOSR is limited to the extent set out in the consultation. If that is the case, there is a real risk that the potential unintended consequence highlighted in the consultation – that employers become reluctant to recruit women of childbearing age – may set back the rights of pregnant employees and new mothers rather than advancing them as intended.

While employers will be supportive of the right to bereavement leave, some of the proposals put forward in the consultation, such as the potential for the length of leave to depend on the nature of the employee's relationship to the deceased, or the ability for employees to take the leave in discontinuous blocks, may involve a greater administrative burden than employers had envisaged based on the original headline proposal in the ERB.

The government believes that the requirement to inform workers of their right to join a union will increase trade union membership and workers participation collective bargaining. Employers should consider now any steps they wish to take to mitigate the impact of such a change. Less significantly, employers should also prepare for the additional administrative burden associated with this change.

The right of trade unions to access workplaces marks a significant change in the UK's approach to collective bargaining. Micro employers will be pleased that the government is proposing they should be exempt. Those organisations with 22 or more employees will need to prepare for access requests, and ensure they are familiar with the final timeframes adopted for responding to and negotiating any request, as well as taking practical steps to make their workplaces accessible to union colleagues. The fines proposed for getting this wrong are potentially substantial. 

The simultaneous publication of four consultations is indicative of the government's desire to stick to the phased consultation and implementation timetable set out in its roadmap document in July. We therefore expect further consultations to be launched in the coming weeks, on the following measures:

• Making protection from unfair dismissal a day one right.
• Restrictions on fire and rehire / fire and replace.
• Guaranteed hours offers and notice of shifts for zero and low hours workers.
• Regulation of umbrella companies.
• Additional trade union provisions, including electronic and workplace balloting, and the simplification of union recognition processes.

If you would like to respond to any of the consultations, you can do so directly online via the links above, or speak to your usual DAC Beachcroft contact.

Meanwhile, as explained in our previous alert, the ERB is currently going through the so-called parliamentary ping pong process. It is due to return to the House of Lords for further debate on 28 October and is expected to gain royal assent in November.

We will continue to keep clients updated on key developments as the ERB moves forward.