Requirement for weekend working was justified 

The Employment Appeal Tribunal (EAT) has upheld a tribunal decision that an NHS Trust’s requirement for community nurses to work flexibly, including at weekends, was objectively justified and did not amount to indirect sex discrimination. 

The decision will be of interest to employers introducing changes to working patterns, particularly where those changes disproportionately affect employees with caring responsibilities. It also serves to highlight the significant restrictions on the ability of employers to make contractual changes, which are being introduced under the Employment Rights Act 2025. 

Dobson v North Cumbria Integrated Care NHS Foundation Trust [2026] EAT 32 

Facts of the case 

The claimant was a community nurse who, since 2008, had worked a fixed pattern of 15 hours over Wednesdays and Thursdays because of childcare responsibilities, including caring for disabled children. 

In 2016, the Trust introduced a Flexible Working Policy requiring all community nurses to work flexibly, including weekends, to support a seven‑day service. The claimant was asked to work occasional weekends (no more than once a month) but refused any departure from her existing pattern. She made it clear she would not accept weekend working under any circumstances.  

Following extensive consultation and a grievance process, the Trust dismissed her. 

Tribunal decisions 

The claimant brought claims for indirect sex discrimination and unfair dismissal. The tribunal initially rejected both claims, but the EAT overturned the discrimination finding, holding that tribunals should take judicial notice of the “childcare disparity” between men and women. The case was remitted to the tribunal. 

On remission, it was common ground that the requirement to work flexibly, including weekends, placed women at a particular disadvantage due to the wellrecognised disparity in childcare responsibilities. The central issue was whether the Trust could objectively justify the ‘provision, criterion or practice’ (PCP) of requiring flexible working. 

The tribunal held that the Trust’s PCP of requiring flexible working was justified and the dismissal fair (see our previous summary of the case). The Trust had legitimate aims, including delivering 24/7 community care, balancing workload and avoiding reliance on more senior staff at weekends. Evidence showed that no other community nurse worked fixed days in this way, and none had left employment because of the flexible working requirement. 

The claimant appealed once again. 

The EAT decision 

The EAT dismissed the claimant’s appeal. It confirmed that tribunals may consider both the impact on the wider group and the individual claimant when assessing proportionality, provided proper regard is given to how typical the claimant’s circumstances are. 

The tribunal had been entitled to conclude that the disadvantage to the group was at the lower end of the scale, given that all other community nurses were able to comply with the requirement. The EAT also rejected arguments that the Trust should have conducted a detailed, individualised assessment of the impact on every affected employee. 

Importantly, the EAT confirmed that the tribunal had been entitled to take account of the claimant’s stance during consultation. While the burden of justification rests with the employer, it was relevant that the claimant had adopted an inflexible position and had not identified any less discriminatory alternatives. 

The Birketts view 

This decision is a helpful one for employers, demonstrating that, provided there is a clear operational need and that a proper consultation process is followed, changes to shift patterns that put some groups of staff at a particular disadvantage can still be justified. Employers should always ensure that they follow the statutory Code of Practice on dismissal and re-engagement.  

However, this position is set to change significantly due to reforms introduced by the Employment Rights Act 2025, expected to take effect from January 2027. The Act will place strict restrictions on dismissals relating to changes to terms and conditions, including where an employer seeks to impose new working arrangements by terminating and re‑engaging employees (“fire and rehire”). 

Dismissals resulting from an employee’s refusal to agree to a ‘restricted variation’ will become automatically unfair, unless the employer can show that it falls within the very limited exception that applies to organisations experiencing significant financial difficulties.  

The extent of a ‘restricted variation’ is currently under consultation (see our previous article), and it is possible that the government will exclude any shift pattern changes from the scope of a restricted variation, meaning that employers can still opt to dismiss and offer re-engagement to staff who refuse to agree to such a change. However, the Government’s stated preference is that what they consider to be the most extreme shift changes, from day to night working (or vice versa) and from weekday to weekend working (or vice versa), will be regarded as ‘restricted variations’, meaning that it will be virtually impossible for employers to make such a change without risking a finding of automatic unfair dismissal.    

Employers should therefore take urgent action to make any required contractual changes, particularly if they are likely to be unpopular with staff, well in advance of these new provisions taking effect in January 2027. Following a fair and thorough process will be essential, particularly since the protective award for failure to collectively consult will increase from 90 to 180 days’ pay for dismissals on or after 6 April 2026.