Employment Case Law Update | Spring/Summer 2026 

A round-up of recent employment case law decisions

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

This case concerns an appeal to the employment appeal tribunal (EAT) in Dobson v North Cumbria Integrated Care NHS Foundation Trust [2026] EAT 32, heard before the Honourable Mr Justice Choudhury, dealing with indirect sex discrimination and unfair dismissal arising from a flexible working policy applied to community nurses.

Background to the case

The claimant was employed by the respondent as a Band 5 community nurse.

In 2008, the claimant had a fixed working pattern due to her caring responsibilities for her children, she would only work on Wednesday and Thursday each week. The claimant had three children, two of whom were disabled. In 2012, the claimant’s third child was born, and he was subsequently diagnosed with autism in 2014.

In 2016, the trust introduced a new policy requiring community nurses to work flexibly, including at weekends. In discrimination law, such a workplace requirement is known as a “Provision, Criterion or Practice” (the “PCP”).

The claimant was clear that she could not accommodate that request, and she was eventually dismissed. Her claims of indirect discrimination and unfair dismissal were dismissed.

The claimant successfully appealed, and the matter was remitted to the same tribunal to consider, amongst other things, whether the respondent could show the PCP to be a fair and proportionate means of achieving a legitimate aim.

The tribunal held that the respondent had established that the PCP was justified and that the dismissal was not unfair.

The Provision, Criterion or Practice (PCP)

The PCP was that community nurses must work flexibly, including at weekends. Under the Equality Act 2010, a workplace requirement that puts one group at a particular disadvantage is not discriminatory if the employer can show it is a proportionate means of achieving a legitimate aim. In other words, the employer must demonstrate that the requirement is justified.

Procedural history

The claimant’s claims of indirect sex discrimination and unfair dismissal were first dismissed at the first hearing in 2019.

On appeal, the EAT upheld the appeal (Dobson v North Cumbria Integrated Care NHS Foundation Trust [2021] ICR 1699 (“Dobson 1”)), deciding that the tribunal had erred in concluding that there was no evidence of “group disadvantage” to found a claim of indirect discrimination, and that the tribunal ought to have taken judicial notice of the “childcare disparity”, which meant that women bear the greater burden of child care responsibilities than men.

The matter was remitted to the same tribunal, which in August 2023 concluded that the PCP was justified and dismissed both claims.

Grounds of appeal

The appeal raised three main arguments:

1. that the tribunal focused too much on the impact on Mrs Dobson personally, rather than on women as a whole;
2. that the tribunal was wrong to hold Mrs Dobson’s refusal to consider alternatives against her when assessing whether the requirement was justified; and
3. that if the dismissal was discriminatory, it must also be unfair.

Can the tribunal focus on the individual rather than the group?

The EAT rejected the argument that the tribunal had focused too heavily on Mrs Dobson individually. The EAT held that there is no fixed rule about how much weight to give to the impact on the individual versus the wider group, that is a matter of judgment for the tribunal.

In this case, the tribunal had properly acknowledged that women as a group were disadvantaged by the requirement but noted that the disadvantage was at the “lower end of the scale” because no other community nurse had been unable to comply.

The EAT also confirmed that employers are not required to carry out an exhaustive statistical analysis of the impact on every single employee in a large workforce.

Does an employee’s conduct during consultation matter?

The EAT held that Mrs Dobson’s unwillingness to consider any compromise or suggest alternative working arrangements was relevant to whether the trust’s requirement was justified. In other words, when assessing whether an employer has acted proportionately, a tribunal can consider whether the employee engaged constructively or simply refused to budge.

The EAT noted that Mrs Dobson had remained “intransigent” despite evidence that occasional weekend working was manageable, and that the Tribunal was entitled to weigh that in its assessment.

Relevance of the claimant’s conduct during consultation

The EAT held that the claimant’s unwillingness to modify her position or suggest any alternative arrangements was plainly relevant to the proportionality assessment. Choudhury J noted that an objective analysis of the seriousness of the discriminatory effect will almost inevitably involve investigation of the extent of the inability to comply, which may include whether the claimant’s insistence on non-compliance was reasonable.

The EAT drew support from Baroness Hale’s observation in Essop that it is “clearly incumbent upon the claimant to challenge the assertion that there was nothing else the employer could do”. The weight to be attached to such matters was for the tribunal, and in circumstances where the claimant had remained “intransigent” despite evidence that occasional weekend working was in fact manageable, no error of law arose.

What does this mean for employers?

This decision provides helpful guidance for employers seeking to introduce or maintain flexible working requirements.

• Considerable flexibility in deciding how much weight to give to the impact on the individual employee versus the wider group when deciding whether a workplace requirement is justified.
• Employers do not need to produce detailed statistics on the impact of a policy on every affected employee, a reasonable assessment is sufficient.
• Perhaps most significantly for employers, if an employee refuses to engage in consultation or consider any alternatives, this can count against them. An employee who takes an all-or-nothing approach weakens their own case.
• The decision is a reminder that justifying a workplace requirement requires a proper evidence-based balancing exercise, employers should document their reasoning and the alternatives they considered.

Rice v Wicked Vision Limited (UKSC-2026-0005)

The UK Supreme Court agreed to hear an appeal in Rice v Wicked Vision Limited (UKSC-2026-0005), following the Court of Appeal’s decision in [2025] EWCA Civ 1466.

Background to the case

Mr Ian Rice was employed by Wicked Vision Limited as Head of UK Sales from December 2019 until February 2021, when he was dismissed on the grounds of redundancy. Mr Rice’s case was that the company’s owner, Mr Strang, decided to dismiss him because he had raised concerns about wrongdoing, known in law as making “protected disclosures” or whistleblowing.

He initially brought a claim for automatic unfair dismissal, a claim that his dismissal was unlawful because the real reason for it was his whistleblowing.

Mr Rice then sought to expand his claim. He wanted to add an additional complaint, that Mr Strang had personally subjected him to the “detriment” of being dismissed, and that the company was responsible for Mr Strang’s actions. Importantly, Mr Rice did not try to bring a claim against Mr Strang individually, the company remained the only party he was suing.

The legal issue

Under the Employment Rights Act 1996, there are two separate routes for a whistleblowing employee to seek compensation.

1. An unfair dismissal claim (under Part X of the Act), which deals specifically with the dismissal itself.
2. A “detriment” claim (under Part V of the Act), which covers situations where an employee has been treated badly, short of dismissal because they blew the whistle.

The law was designed so that if the complaint is really about a dismissal, the employee should use the unfair dismissal route, not the detriment route. In other words, there should not be double recovery for the same thing.

However, in an earlier case Timis v Osipov [2018] the Court of Appeal decided that an employee could bring a detriment claim against individual colleagues (“co-workers”) who were involved in the decision to dismiss them, even though the complaint was essentially about the dismissal.

The employer could also be held responsible for the co-worker’s actions. In effect, Osipov opened the door for employees to run both types of claim side by side, based on the same dismissal.

The Court of Appeal

The Court of Appeal unanimously disagreed with the reasoning in the earlier Osipov decision gave a unanimous judgment in which it expressed clear disagreement with the reasoning in Osipov. In the Court’s view, the law is clear – if the complaint is really about a dismissal, the employee cannot also bring a detriment claim regardless of whether the claim is framed as being about the actions of a co-worker.

The court noted that there is no meaningful distinction between a dismissal “by the employer” and a dismissal “by a co-worker,” because a company can only ever act through people, and the law treats the co-worker’s actions as the employer’s own.

The court also pointed out that when Parliament updated the whistleblowing laws in 2013, it chose not to change the provision that prevents detriment claims based on dismissal suggesting Parliament did not intend to create a loophole.

Despite this, the court felt it had no choice but to follow the earlier Osipov ruling, as it was bound by the principle that courts must follow previous decisions of the same level. Mr Rice’s appeal was therefore allowed, and he was permitted to add the detriment claim.

The court made clear that “it is plainly unsatisfactory that the construction of this legislation has now produced conflicting decisions at three levels of court, but that can only be resolved by the Supreme Court or by amendment to the legislation.”

Why this matters: the practical significance for employers

The reason this case is significant is that a detriment claim gives employees access to additional remedies that are not available in a standard unfair dismissal claim. If employees can run both claims in parallel, the financial and practical exposure for employers increases. The key differences include:

• Compensation for injury to feelings: In a detriment claim, employees can recover damages for the emotional impact of the treatment they suffered. This type of award is not available in an unfair dismissal claim.
• A different causation test: In a detriment claim, an employee only needs to show that their whistleblowing was a reason for the treatment. In an unfair dismissal claim, whistleblowing must be the main reason for the dismissal, a harder test for the employee to meet.
• A reasonable steps defence: If a detriment claim is brought based on a co-worker’s actions, the employer has a statutory defence if it can show it took all reasonable steps to prevent that conduct. This defence does not exist in a standard unfair dismissal claim.
• No compensation cap: Compensation for automatic unfair dismissal is already uncapped, but the ability to run parallel claims may expand the heads of recoverable loss.

What does this mean for employers?

The Supreme Court’s decision will be decisive. If the earlier Osipov ruling is upheld, employees will be able to continue “doubling up” by bringing both an unfair dismissal claim, and a detriment claim based on the same dismissal.

If Osipov is overturned, employees will be limited to the unfair dismissal route alone when the complaint is about their dismissal.

In the meantime, employers should consider the following:

• Review whistleblowing procedures and training;
• Anticipate broader claims in whistleblowing dismissal cases; and
• Consider the implications for settlement.

Given the Court of Appeal’s express disagreement with Osipov and the Supreme Court’s decision to hear the appeal, there is a realistic prospect that the law will change. Employers currently defending whistleblowing claims that include dismissal-based detriment allegations should take account of the possibility that such claims may ultimately be barred.

(1) Mr J Ellard, (2) Mr K Hulse and (3) Mr L Warren -v- Alliance TransportTechnologies Limited

On 22 October 2025, the EAT handed down a judgment in the case of (1) Mr J Ellard, (2) Mr K Hulse, (3) Mr L Warren -v- Alliance Transport Technologies Limited, which clarified the duty of employers under the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”).

Section 188 of TULRCA provides that the duty to collectively consult is triggered if an employer proposes to make 20 or more redundancies at a single establishment within a 90-day period. In this case, we see section 188 applied in a context where there is a provisional intention to dismiss over 20 employees.

Background to the case

The respondent, Alliance Transport Technologies Limited was a medium-sized manufacturing enterprise of approximately 51 employees.

On 2 May 2023, the respondent entered administration due to significant pressures on their cashflow following delays to projects and technical complexities. On the same day, it made a group of 15 employees redundant, and at the same time was in discussions with an interested party about the sale of the business. Three days later, following confirmation that the company would not be bought out, it made its remaining employees redundant.

As 20+ employees had been made redundant within a 90-day period, people from both groups of redundancies made claims to the employment tribunal arguing that they should have been invited to a collective consultation.

The employment tribunal

The employment tribunal (ET) distinguished between the two groups of redundancies and relied on UK Coal Mining Limited v NUM (Northumberland Area) and another 2008 ICR 163 EAT, which found that it was not sufficient to amount to a proposal to dismiss as redundant “when the closure is mooted as a possibility”.

Therefore, the ET found that the employees dismissed on 2 May 2023 (“the First Group”) did not reach the statutory threshold of the 20+ employees being made redundant for collective consultancy purposes. Their claims were therefore dismissed.

The claims brought by employees dismissed on 5 May 2023 (“the Second Group”) were successful, as they were a group of 20+ employees.

The employment appeal tribunal

The first group appealed the ET’s decision on the following three grounds:

1. The ET failed to consider whether the employer was, at the relevant time, “proposing to dismiss” within a period of 90 days, 20 or more employees;
2. The ET erred in stating that it was immaterial whether there was a strong or weak prospect of the business being rescued or sold as a going concern; and
3. The ET’s conclusion that there was a clear intention to sell the business as a going concern as of 2 May 2023 was perverse and contrary to the evidence before the Tribunal, including a report from the administrators.

Following review of the administrators report, the EAT upheld all the Appellant’s grounds, ruling that the correct legal question that the ET should have applied was whether the respondent had been ‘proposing to dismiss’ at the time of the redundancies made on 2 May 2023.

What does this mean for employers?

This case should alert companies to the fact that the section 188 duty to collectively consult can be triggered by an intention of dismissing employees.

The consequences of failing to collectively consult can be a costly mistake to employers. As of 6 April 2026, the Employment Rights Act 2025 has upped the protective award to be 180 days’ gross pay (previously 90 days’) per affected employee and included an organization-wide threshold test.

Clifton Diocese -v- Miss Janet Parker [2026] EAT 68

On 12 May 2026, the EAT handed down an appeal made by the appellant, a Catholic charity Clifton Diocese.

Background to the case

The claimant, Miss Parker, had been a qualified chartered accountant employed by the respondent from February 2016. She was not of Catholic faith.

Miss Parker had been regarded as an excellent employee who was responsible for oversight of all regulatory submissions to Companies House, HRMC, and the Charity Commission.

In 2017, Miss Parker told Mrs Murray, her line manager and CEO of Clifton Diocese, of her intentions to adopt a child.

On 9 September 2020, Miss Parker had been granted a formal adoption order and as such, took adoption leave to care for her child. The respondent recruited Rachel Lawes as cover for the claimant’s position on a 12-month fixed term contract.

During discussions around Miss Parker’s return to work and flexible working, Mrs Murray insisted the role could not be done part-time and refused to consider alternative arrangements. Shortly after, Mrs Murray raised performance concerns about Miss Parker for the first time. Specific concerns were raised around the claimant’s manner of dealing with the Fixed Asset Register prior to going on adoption leave.

Miss Parker was suspended, subjected to a disciplinary process and dismissed for gross misconduct.

Miss Parker subsequently submitted a grievance on 31 August 2021, asserting that Mrs Murray had bullied her, particularly in relation to return to work discussions during her adoption leave.

She brought claims of unfair dismissal, wrongful dismissal and discrimination because of religion or belief, and harassment.

The employment tribunal

The Judge found that the Diocese “entirely failed to look for any exculpatory evidence” during the disciplinary investigation and had adopted the approach “that it was for the claimant to disprove the allegations”. They found that the hearing had been rushed and had not provided the claimant with sufficient time to respond to the allegations.

The dismissal was found to be unfair and wrongful. These grounds were not appealed.

It was further found that Miss Parker had suffered discrimination and harassment because of religion or belief, due to her status as a non-Catholic.

The employment appeal tribunal

Mrs Murray appealed the findings of discrimination and harassment.

On 12 May 2026, the EAT allowed this appeal and held that the ET had misapplied the burden of proof under section 136 of the Equality Act 2010. It was found that the ET had erroneously applied a blanket approach to the first stage of the section 136 analysis. It had not assessed each allegation separately.

The ET’s decision had been remitted to the same tribunal for reconsideration.

What does this mean for employers?

When applying section 136 of the Equality Act, it must first be determined whether there is evidence from which an inference of discrimination could be drawn. Allegations should be assessed separately and assumptions about religious views should not be made without a proper evidential basis.

This content is provided for general informational purposes only and does not constitute legal advice. It is not intended to address the circumstances of any individual or entity, nor should it be relied upon as a substitute for specific advice from a qualified solicitor. The information reflects the legal position as at the date specified and may be subject to change. If you require advice on a specific matter, please contact us directly.