Flexible working…

Flexible Working in Pursuit of a Legitimate Aim

In the recent case of Dobson v North Cumbria Integrated Care NHS Foundation Trust: [2026] EAT 32 a Tribunal  has rejected a claim by a mother of three following a change in her working pattern.  This was despite her raising arguments alleging that the new proposal would negatively affect her ability to care for her children.

Mrs Dobson, a community nurse, had worked a fixed two-day pattern for a number of years before the Trust insisted that it was a requirement for all community nurses to work flexibly, including at weekends. Mrs Dobson refused the change due to childcare needs, including the care of her two disabled children, and was subsequently, dismissed and offered re-engagement on the new terms. As a result, she brought claims for unfair dismissal and indirect sex discrimination.

After hearing her case, the Employment Tribunal (ET) dismissed Mrs Dobson’s claims for unfair dismissal and indirect sex discrimination. In relation to the latter, the ET concluded that there was no evidence that the request for flexible working caused a particular disadvantage for women compared to men; this was on the basis that everyone else in Mrs Dobson’s team, including the eight other women, had accepted the change. Mrs Dobson appealed this outcome, citing failure of the ET to consider the wider group at a possible disadvantage, as well as failure to consider that more women than men tend to have childcare responsibilities so are less likely to be in a position to comply with changes to working patterns.

On appeal, the Employment Appeal Tribunal (EAT) determined that the ET should have taken notice of the childcare disparity affecting women when making an assessment of “group disadvantage”. The case was sent back to the ET on this basis, to assess whether the Trust were able to objectively justify the policy and whether the dismissal was therefore fair.

On rehearing, the ET upheld the Trust’s decision to dismiss and offer re-engagement, finding that the requirement for flexible and weekend working was in pursuit of a legitimate aim, namely to provide community care and fair distribution of workload. Additionally, it was held that the policy was a proportionate means of achieving those aims given that Mrs Dobson was able to manage weekend work on occasion, providing she had been given some notice (albeit she would face some difficulty in doing so).

Mrs Dobson once again appealed, stating that the Tribunal had focussed too narrowly on her particular circumstances and had placed undue weight on her responses during consultation, rather than the disadvantage to the wider group.

Nonetheless, the EAT dismissed this further appeal, holding that the ET was entitled to find that the flexible working arrangement was in pursuit of a legitimate aim and could be considered a proportionate means of achieving that aim.

Conclusion

This decision demonstrates that employers may be able to justify policies requiring changes to working patterns where they are acting in pursuit of a legitimate aim, with evidence supporting the business need for this aim.

Furthermore, the decision highlights that it is appropriate, in consideration of the above, to weigh the impact on any proposed change on the individual, alongside the impact on the wider group disadvantage.

However, with this in mind, employers should be aware that justifying these policies comes with a high threshold. It is therefore important to carefully consider:

• whether there are alternatives which are less likely to result in potential discrimination, ensuring meaningful consultation takes places with affected employees; or
• if no viable alternative can be found, to clearly document underlying business rationales and any reasoning supporting the proposed policy’s proportionality.

Changes Employers should be aware of

Whilst the practice of dismissal and re-engagement (or fire and rehire) has been discussed in this article, employers should be aware that the Employment Rights Bill will introduce measures in 2026 which will make it even more difficult for employers in the UK to dismiss workers and rehire them on different terms.

The law will change in that if an employer makes a change which is defined as a “restricted variation” without the employee’s agreement, any dismissal in these circumstances will automatically be considered unfair. Restricted variations in this context include changes to contractual provisions which place an employee on detrimental terms, such as lower pay, removal of pension benefits, less hours or a reduction in holiday provisions. In effect, this means that employers are no longer able to dismiss employees and offer them re-employment on new terms and conditions where it is looking to implement a detrimental change in employment terms.

Employers should be aware that even if the change is not a restricted variation, an ET is bound to consider how employers have conducted the change. This is why it is essential to consult with employees and provide evidence of underlying business aims, demonstrating the reasoning supporting the proposed change in policy.

If you would like advice on anything discussed in this article, or advice regarding a change in working policies, including the process and effect of any proposed changes, please contact Annabel Priest on 01604 609590 or Michael Nadin on 01604 609566 or email here: