Employment Rights Bill to strengthen reproductive health rights in the workplace

Workplace reproductive health rights are due to be strengthened with the introduction of the Employment Rights Bill (ERB) — a significant piece of legislation aimed at modernising UK employment law.  
 
In this article, Susan McKenzie and Daisy Dickenson explore the key changes proposed by the ERB — such as equality action plans, new  mother dismissal protection and flexible working enhancements — and assesses their implications for employers. 

Equality action plans 

To support workplace inclusivity and wellbeing, the ERB proposes that large employers (with 250 or more employees) the ERB will be required to create ‘equality action plans’. Such plans need to address matters like how employers will support employees who are going through the menopause. The ERB confirms that future regulations will outline the specific requirements of the action plans including the content, format and method of publication, as well as specifying when and how often the plans must be made publicly available. 

Protection from dismissal for new mothers 

Since April 2024, women in redundancy situations have had the right to be offered suitable alternative employment once they inform their employer of their pregnancy (and for 18 months after the child is born). The ERB proposes to expand this protection to all types of dismissal during pregnancy and maternity leave, as well as following return to work (likely for a maximum of six months).  
 
This proposed protection would also extend to other statutory family leave: adoption leave, shared parental leave, neonatal care leave and bereaved partner’s paternity leave (once it has been brought into force). While there’ll be a limited number of exceptions to this protection, these haven’t yet been determined and will be set out in regulations.  

This new protection would ease the challenges faced by new parents, providing greater job security and financial support during a transformative stage of life. However, the Government is aware of the potential for “adverse effects, for example, employers being hesitant to employ women on the basis that the circumstances in which they can dismiss them will be more tightly constrained” and will use consultation “to test the likelihood of any unintended consequences”.  

Paternity & parental leave 

The ERB will remove the continuity of service requirement for statutory paternity leave and parental leave. Employees will therefore be entitled to paternity leave and parental leave from their first day of employment, subject to providing their employer with the required notice.  
 
Removing the continuity of service requirements brings paternity leave and unpaid parental leave into alignment with maternity leave and adoption leave. Employees will also be able to take their paternity leave after shared parental leave.  

The Women and Equalities Committee (WEC) published a report in June on paternity leave and shared parental leave that highlighted the issues with the existing parental leave system and made recommendations to the Government, which is now conducting a review into parental leave — something that was promised in its Next Steps to Make Work Pay policy paper since “the current parental leave system doesn’t support working parents”.  

We’ll wait and see what comes from the Government’s review, including whether any of the issues highlighted in the WEC report are to be addressed or any recommendations adopted.  

Flexible working enhancements 

In April 2024, the statutory right to request flexible working became a day-one right for employees. Now, the ERB intends to enhance this provision by requiring an employer that refuses a flexible working request to be reasonable in that refusal.  
 
An employer would be required to clearly state the grounds for refusal and provide an explanation as to why the refusal is deemed reasonable. According to the government’s pre-election Plan to Make Work Pay, the emphasis is on “making flexible working the default [...] except where it is not reasonably feasible.”  
 
This requirement would make it increasingly difficult for employers to refuse flexible working requests, many of which are made by those who are balancing caring for their families or managing reproductive health challenges. 

Extending time limits for bringing employment tribunal claims 

A Government amendment to the ERB extends the time limit for bringing the vast majority of tribunal claims from three to six months. This will be a welcome change for claimants — particularly pregnant women and those on maternity leave, when their focus is understandably elsewhere. This was cited in the ‘Consultation on sexual harassment in the workplace’ Government response in 2021. 
  
Extending time limits for bringing employment tribunal claims has the potential to play an important part in addressing the barriers that women face under the current short time limits for bringing claims, which can be both logistically demanding and financially burdensome.  

Pregnancy loss bereavement leave 

A Government amendment has added leave for those who’ve suffered a pregnancy loss before 24 weeks (including miscarriage) into the ERB.  

This follows a recommendation in the Women and Equalities Commission’s report Equality at work: Miscarriage and bereavement leave for the ERB to be amended to include two weeks’ statutory bereavement leave and pay to those experiencing pregnancy loss before 24 weeks.  

On 7 July, the Government announced that the day-one right of statutory bereavement leave (which is already included in the ERB) would be extended to parents experiencing pregnancy loss before 24 weeks. As things stand, the right is to leave only (i.e., not pay).  

While it’s good to see a statutory right to leave being provided, it’ll remain to be seen how many people will exercise this right until it’s paid, unless employers choose to provide leave.     

Missing menopause protections  

While the ERB takes encouraging steps to support reproductive health rights in the workplace, we believe that it could have gone further — particularly around menopause protections. 

The last Government rejected the Women and Equalities Committee’s proposal in its Menopause and the workplace First Report to make menopause a protected characteristic under the Equality Act 2010. Due to the fact that many women continue to face stigma, a lack of support and unfair treatment as a result of menopausal symptoms like fatigue and cognitive challenges, doing so could mandate better workplace accommodations and reduce discrimination. 
  
The ERB could also have extended menopause action plans to cover those suffering from menstrual problems and disorders such as Premenstrual Dysphoric Disorder (PMDD) and endometriosis. While an amendment was proposed by a Labour MP to extend equality action plans in this way, it was subsequently withdrawn. This would have been a welcome change to reduce discrimination and the stigma surrounding such conditions and help to improve gender equity in the workplace. 

Talk to us 

As reproductive health increasingly becomes a workplace issue, the ERB goes some way to reshape how employees navigate the balance between their careers and personal lives.  

Employers should now consider these intended changes and prepare to facilitate them. 

If you need advice about the issues discussed here or want to talk about how navigating the ERB could affect you or your organisation, our specialist employment law team is here to help. 

Talk to us by giving us a call on 0333 004 4488, sending an email to hello@brabners.com or completing our contact form below.