Justifying in indirect discrimination claims

Dobson v North Cumbria Integrated Care NHS Foundation Trust [2026] EAT 32 is the second Employment Appeal Tribunal (EAT) decision in a long-running indirect sex discrimination and unfair dismissal dispute concerning flexible working requirements and childcare responsibilities.

The claimant, Mrs Dobson, was a community nurse employed by an NHS Trust. For several years she worked fixed weekday hours, but following a service review, the Trust introduced a new working pattern requiring community nurses to work flexibly, including weekends. Mrs Dobson, who had primary childcare responsibilities for three children (two of whom were disabled), was unable to comply with weekend working. After attempts to reach agreement failed, she was dismissed and brought claims for indirect sex discrimination and unfair dismissal.

The litigation has a complex procedural history. Initially, the Employment Tribunal (ET) rejected her claims, finding no evidence of group disadvantage to women. That decision was overturned by the EAT in 2021, which held that tribunals should take judicial notice of the “childcare disparity”. This is the widely recognised fact that women disproportionately bear childcare responsibilities, and that therefore this could establish group disadvantage without specific statistical evidence. The case was remitted to the ET to reconsider justification.

On remittal, the ET accepted that the Trust’s requirement (a “provision, criterion or practice” or PCP) placed women, including Mrs Dobson, at a disadvantage. However, it held that the PCP was objectively justified as a proportionate means of achieving legitimate aims. These aims included ensuring continuous patient care in the community, fairly distributing workload among staff, and reducing reliance on more senior (and costly) nurses at weekends. The tribunal also found that Mrs Dobson could, with difficulty, manage occasional weekend work given available childcare, and noted that she had not proposed any workable alternatives.

Mrs Dobson appealed again, leading to the 2026 EAT decision. The EAT dismissed the appeal and upheld the ET’s reasoning on justification. The judgment provides important clarification on how tribunals should assess justification in indirect discrimination cases.

Overall, the EAT concluded that the ET had correctly balanced the discriminatory impact on Mrs Dobson against the Trust’s operational needs. The requirement for flexible working, including weekends, was a proportionate means of achieving legitimate aims, and therefore the indirect discrimination claim failed. The unfair dismissal claim also failed for similar reasons.

This case confirms that tribunals have broad discretion in weighing individual and group disadvantage, and that operational demands, particularly in public services like healthcare, can justify indirectly discriminatory practices where they are proportionate.