Employment tribunal and court judgments | April 2026

Ms Dobson, a community nurse with significant childcare responsibilities (including caring for 2 disabled children), worked a fixed two‑day pattern for many years. The Trust introduced a requirement for all community nurses to work flexibly, including weekends. Ms Dobson refused due to childcare needs and was dismissed and offered re‑engagement on the new terms. She brought claims for unfair dismissal and indirect sex discrimination.

Ms Dobson’s claims were initially dismissed by the Employment Tribunal. Ms Dobson appealed.

The EAT held that tribunals should take judicial notice of the childcare disparity affecting women when assessing group disadvantage. The case was remitted to the ET to determine whether the Trust could objectively justify the policy and whether the dismissal was fair.

The ET on remission upheld the Trust’s decision, finding that:

• the requirement for flexible working, including weekends, pursued legitimate aims (providing 24/7 community care and fair distribution of workload); and
• the policy was a proportionate means of achieving those aims, given that Ms could manage occasional weekend work with notice, albeit with difficulty.

Ms appealed again, arguing that the tribunal had focused too narrowly on her individual circumstances rather than the wider group disadvantage and placed undue weight on her responses during consultation.

The EAT dismissed Ms Dobson’s further appeal. It held that the tribunal was entitled to find that the flexible working requirement pursued legitimate aims (including providing a 24/7 service) and was a proportionate means of achieving them. The tribunal had not erred by weighing the impact on Ms Dobson alongside the wider group disadvantage.

This decision illustrates that employers may be able to justify a policy requiring flexible working where it pursues a genuine legitimate aim and is supported by sufficient evidence of business need.

That said, justifying such policies remains a high threshold. Before implementation, employers should carefully consider whether there are less discriminatory alternatives and ensure meaningful consultation with affected employees. Where no viable alternative exists, it is essential that employers clearly document the underlying business rationale and the reasoning supporting the policy’s proportionality.

Ms Bibescu was employed by an accountant from 2018 until her dismissal in June 2020. There had been performance concerns about her work, which pre-dated the events relied upon as whistleblowing. The employer arranged for a subcontractor to peer-review her work, which Ms Bibescu strongly opposed.  Shortly before a meeting in June 2020, Ms Bibescu researched the subcontractor and discovered that he was disqualified from acting as a company director and was not a member of a professional accountancy body. She raised those points in a meeting with her employer and subsequently by email. She was dismissed shortly afterwards on grounds of capability (poor performance).

Ms Bibescu brought claims for automatic unfair dismissal for whistleblowing, whistleblowing detriment and automatic unfair dismissal on health and safety grounds.

The ET rejected all whistleblowing claims, finding that:

• although information had been disclosed, it was not made in the public interest;
• the statutory wrongdoing factors in s.43B ERA were not established; and
• the principal reason for dismissal was poor performance, not whistleblowing.

Ms Bibescu appealed.

The EAT upheld the tribunal’s conclusion that the dismissal was not automatically unfair, as the finding that performance was the principal reason was open to it on the evidence. However, it allowed the appeal in relation to whistleblowing detriment. The EAT found that the tribunal had:

• failed to make necessary findings about the claimant’s state of mind; and
• wrongly substituted its own view of whether the disclosure was reasonable and in the public interest, instead of assessing whether the claimant subjectively believed this to be the case and whether that belief was objectively reasonable.

As a result, the detriment claim was remitted to a freshly constituted Tribunal for rehearing.

• State of mind matters in whistleblowing – When assessing whether a disclosure is protected, the focus is on whether the worker believed the disclosure was made in the public interest and whether that belief was reasonable — not whether the tribunal agrees with the worker’s assessment.
• Dismissal and detriment claims are legally distinct: A whistleblowing detriment claim can survive even where an automatic unfair dismissal claim fails, and tribunals must analyse each separately.
• Performance evidence is crucial: Clear, contemporaneous evidence of performance concerns—especially where they pre‑date any disclosure—can help to successfully defeat a whistleblowing dismissal claim.
• Handle internal disclosures carefully: Employers should avoid assumptions about motive and ensure responses to disclosures are separated from performance management decisions.

Ms Hassani was employed by BMCE Bank of Africa (“BMCE”), and in 2016 she was seconded to its UK subsidiary, Bank of Africa UK plc, as Head of HR. The secondment documents stated she remained employed by BMCE, and would return to it at the end of the secondment. After raising regulatory and governance concerns whilst in the UK, her secondment was brought to an end in 2021, and she returned to BMCE. Ms Hassani brought claims including whistleblowing detriment and automatic unfair dismissal against the Bank of Africa UK, and two senior individuals.

The tribunal found that her employment had transferred to the UK entity during her secondment, and upheld aspects of her whistleblowing claims. The Bank of Africa UK (and the two senior individuals) appealed.

The EAT allowed the appeal. It held that the tribunal had erred in law in concluding that Ms Hassani’s contract of employment had transferred to the UK bank; on the findings, her employment remained with BMCE. As a result, the automatic unfair dismissal claim against the UK bank could not succeed. The EAT also set aside parts of the whistleblowing detriment findings due to legal errors and remitted those issues to a differently constituted tribunal.

This case underlines the importance of carefully analysing employment status in secondment arrangements. Whistleblowing protection depends on identifying the correct employer, and tribunals must not infer contractual transfer without a proper legal basis.

For employers, clear and consistent documentation of secondment arrangements and reporting lines is essential to ensuring that whistleblowing concerns and related claims are managed correctly and attributed to the appropriate entity if they arise.

Miss Kay was employed by The Laurels Family Assessment Ltd as a family support worker providing regulated services to vulnerable families. She raised concerns that a colleague had attended work while affected by recreational drugs, first internally to a manager in August 2022 (a point disputed on the facts) and later, in September 2022, to an independent external visitor gathering safeguarding information. On the same day as the second disclosure, Miss Kay was invited to a disciplinary meeting and summarily dismissed for alleged gross misconduct, including issues relating to medication records.

Miss Kay brought tribunal proceedings alleging that she had been automatically unfairly dismissed for making protected disclosures under s.103A Employment Rights Act 1996.

By a majority, the Employment Tribunal accepted her account and found that the disclosures were the principal reason for her dismissal.

The Employment Appeal Tribunal dismissed the employer’s appeal and upheld the Employment Tribunal’s finding.

This case reinforces that tribunals will look beyond an employer’s stated rationale for dismissal and interrogate the underlying reason, particularly where whistleblowing is alleged.

The timing of a dismissal closely following a disclosure will continue to carry significant evidential weight and may, on its own, support an inference of causation. The decision highlights the difficulty of successfully defending whistleblowing dismissals without clear, contemporaneous documentation demonstrating that disciplinary action was conceived and progressed independently of the disclosure.