Quick Updates
(a) Polygamous working
There have been recent reports that increasing numbers of workers in the UK are taking on second jobs without informing their employer, particularly in sectors with higher levels of remote or hybrid working, such as technology.
While holding more than one job is not inherently unlawful, it can give rise to contractual breaches (where exclusivity or outside interests clauses apply), potential fraud, and regulatory exposure. It also presents practical risks for employers, including reduced performance, confidentiality concerns, and compliance issues under the Working Time Regulations 1998. From a well-being perspective, it may also increase the risk of burnout, stress-related illness and health and safety incidents.
Employers are advised to address this risk proactively, by reviewing contractual provisions on exclusivity and disclosure of secondary work and ensuring that these are justified and proportionate. They should also consider tightening supervision and performance management arrangements for remote workers.
(b) Launch of Fair Work Agency
The Fair Work Agency (FWA) launched on 7 April 2026, and is the UK’s new single labour market enforcement body. The FWA consolidates enforcement of the National Minimum Wage, agency worker protections and other core employment rights, with powers to inspect, investigate and impose civil penalties. Although no new substantive rights were introduced at launch, commentary has focused on the shift from complaint-led enforcement to proactive monitoring, particularly for lower-paid and atypical workers.
Case Reports
Dobson v North Cumbria Integrated Care NHS Foundation Trust (No. 2) [2026] EAT 32: Can an employer justify/impose a flexible‑working requirement that includes weekend working?
This case is the second EAT appeal arising from a long‑running dispute about whether an employer can objectively justify a flexible working requirement that includes weekend working, where the Claimant (a working mother with significant caring responsibilities) maintained she could not comply. In this case, the focus was on the emphasis that should be placed on an individual’s circumstances where indirect discrimination claims rely on a group disadvantage, particularly where evidence about the wider workforce is limited and the Claimant’s position is inflexible.
Mrs Dobson worked as a Band 5 community nurse in the Cockermouth Community Nursing Team from 1 September 2004 until her dismissal on 19 July 2017. Following the birth of her first child she made a flexible working request which was granted. At a 2013 review, the Trust agreed to maintain the fixed pattern given her circumstances.
In 2016, the Trust introduced a Trust‑wide Staff Rostering Policy and Flexible Working Policy, triggering a review of flexible arrangements. Mrs Dobson was asked on 8 September 2016 to work occasional weekends (no more than once a month). She maintained that weekend working was not manageable, raised a grievance, and declined to consider alternatives. Following further meetings, the Trust issued her with notice of dismissal and offered her re‑engagement on revised terms requiring her to work on additional days with notice. She did not accept, and her employment terminated on appeal in July 2017.
On remission, the Employment Tribunal accepted as reliable the Trust’s evidence that Mrs Dobson’s fixed working pattern caused operational and fairness difficulties, and reliance on more senior nurses to provide weekend cover at greater cost. These issues were found to be unsustainable given the increasing complexity of community care and the need to provide a 24/7 service. It found that Mrs Dobson was determined to retain her fixed pattern indefinitely and that she could comply with the requirement to work flexibly, albeit with difficulty. The disadvantage was assessed as being at the lower end of the scale when weighed against service needs. The policy was therefore found to be a proportionate means of achieving a legitimate aim and thus her claim for indirect discrimination was dismissed.
On appeal, Mrs Dobson argued that the Tribunal had placed disproportionate emphasis on her individual circumstances rather than the wider group disadvantage. The EAT rejected the notion that there is a legal threshold for how much focus must be placed on group versus individual impact. The Tribunal had accepted there was a group disadvantage in line with Dobson (No. 1) and considering the Claimant’s individual impact did not undermine the proportionality analysis. Furthermore, the EAT was unwilling to impose an unreasonable evidential burden on employers to gather such evidence across thousands of employees.
The judgment provides important guidance on what a Tribunal will take into account when considering whether an indirectly discriminatory policy is proportionate, and the weight to be placed on the disadvantages suffered by the individual versus the group.
Although Dobson (No. 2) is an objective justification case on an indirectly discriminatory policy rather than a flexible working rights case, it is likely to be cited frequently as employers increasingly rely on organisation‑wide flexibility requirements, particularly in sectors where 24/7 service delivery is critical.
Dismissal following “whistleblowing” by an employee is not always unfair
The case: Miss Elena Bibescu v Clare Jenner Ltd ta Jenners: [2026] EAT 30
The Claimant was employed as an accountant from 21 November 2018 until her dismissal on 11 June 2020. Throughout her employment, the Respondent raised concerns about the standard of her work and a subcontractor was asked to peer-review the Claimant’s work, which the Claimant was unhappy with.
Prior to a meeting requested by the Claimant to discuss the peer review process, she discovered that the subcontractor had previously been disqualified as a company director (but still appeared listed as a director of a company linked to his wife), and that he was not a member of the Association of Chartered Certified Accountants (ACCA). She raised these matters with the Respondent on 8 June 2020. On 11 June 2020, the Claimant was dismissed.
The Claimant brought claims of automatic unfair dismissal under section 103A ERA 1996, whistleblowing detriment under section 47B ERA 1996, and a health and safety dismissal claim under section 100 ERA 1996 (the latter not pursued on appeal). The Employment Tribunal at first instance rejected the section 103A claim, finding that the principal reason for dismissal was performance rather than whistleblowing. It also held that the disclosures were not protected, concluding they were motivated by personal interests and not made in the public interest, and made no determination on the detriment claims. The Claimant appealed.
The EAT upheld the Tribunal’s conclusion on the reason for dismissal, but that it had erred in law when assessing whether the Claimant’s disclosures were protected. The EAT said that the correct approach was to ask whether the worker genuinely believed, at the time, that the disclosure was made in the public interest, and if so, whether that belief was reasonable. The focus must be on the worker’s subjective belief, assessed objectively in light of their circumstances, without the Tribunal substituting its own view of what was reasonable.
The case reinforces that when assessing whether a disclosure qualifies for protection, self-serving disclosures may still be protected if the worker genuinely and reasonably believes they are in the public interest. It also highlights that a well-documented performance management process helps to avoid a finding of automatic unfair dismissal. The Respondent succeeded in defending this claim because it could demonstrate an evidential trail of performance concerns that pre-dated the disclosures and justified the decision to dismiss on performance grounds.
Legal waiver:
The information contained in this article is for general use is not intended to be comprehensive or a replacement for obtaining specific legal advice about your situation. Using the information without consulting us or another professional adviser is at your own risk. McKee Campbell Morrison Ltd accept no responsibility and gives no representations or warranties, express or implied, that any of the information and materials on this site is complete, accurate or free from errors or omissions.
