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.

The Government has launched a consultation under the Employment Rights Act 2025 which could materially reshape how employers approach larger-scale redundancy exercises.

Currently, collective consultation obligations arise where an employer proposes 20 or more redundancies at one “establishment” within a 90-day period. In practice, this means that large employers can avoid triggering consultation by spreading redundancies across multiple “establishments”. However, the Government considers this to be inconsistent with ensuring fair workforce consultation.

The consultation now introduces a further trigger for collective consultation, which is based on redundancies across the entire organisation, not just one establishment. However it’s important to note that the current trigger of “20 or more at one establishment” will remain but a second threshold which is business-wide will apply alongside. This may have the effect of requiring employers to consult on redundancy proposals where individual sites have less than 20 redundancies but the total redundancies across the organisation as a whole meets the new threshold.

So, what might the new threshold be?

The Government is consulting on how to set this new trigger. The key options include:

1. A single fixed number

Reports suggest this could be in the range of 250 to 1,000 redundancies across the business as a whole, which appears to be the preferred approach at present due to its simplicity.

2. A percentage-based threshold

This approach would trigger collective consultation requirements where a particular percentage of the workforce may be made redundant. However, the concern with this approach is that it could disproportionately affect smaller employers.

3. A tiered system

This is likely to involve different thresholds depending on the size of the employer and could potentially involve a combination of fixed numbers and percentages.

None of the above approaches are without complexity, particularly for multi-site or seasonal workforces.

One the key issues to be considered is how workforce size will be calculated when assessing whether the new threshold is met. The consultation will explore different methods including, average headcount over a reference period, headcount at the time redundancies are proposed or fixed calculations at fixed intervals. For employers, it’s going to be crucial to establish employment status and monitor headcount.

Employers and HR need to be aware of the increased legal risk. Where collective consultation obligations are not complied with employees can claim a protective award. Current this is 90 days pay but will increase to 180 days pay from April 2026. The stakes are rising for employers with litigation, financial and reputational risk.

The consultation closes on 21st May 2026 with an expectation that the new rules will be implemented in 2027.

Employers should take steps to prepare now and key steps are likely to include ensuring clarity on employment status and accurate headcount information as well as having a central oversight of redundancy proposals across the business as a whole.

For agencies, building a business that is truly valuable, scalable, and ready to sell is a different challenge from simply building a successful one.  

We’re lucky to work with agencies at every stage, from start-up to exit, and one thing we notice is that the businesses that succeed in the short term and get the best valuations later start planning their exit three to five years before they want to sell. Planning ahead matters because building a sustainable, transferable business takes time. Trying to do it all in the last six months before a sale usually backfires and adds no value.  

Here are six key areas to focus on, whether you’re maintaining, growing, or preparing to sell: 

1. Who actually owns the value?

This is where creative businesses are most at risk, and where owners, clients, and buyers can face unexpected issues. An agency’s value often comes from its creativity, the relationships it builds, and the reputation of a small group of talented people. Buyers and investors know this, so they factor in the risk that those key people might leave. 

Here’s how to avoid an awkward conversation:

Do your employment and contractor agreements make sure that any intellectual property created belongs to the business? Many agencies find out too late that a freelancer still owns the work they produced, or that employee side projects cause problems if any of the work was done outside office hours. Instead of arguing later, make sure you have the right agreements in place from the start. 

Do your key people have reasonable restrictions to prevent them from taking clients or colleagues if they leave? These rules need to be fair to be enforceable, but if you don’t have them at all, they won’t protect you. 

If a founder or a few senior creatives leave, can your business keep running smoothly? You, your team, and any potential buyers or investors need to be sure that your business doesn’t depend too much on any one person. 

Do you have the right incentives in place to reward your top people and keep them motivated during a transition? 

2.  How reliable is your revenue?

Project-based work leads to unpredictable income, but recurring retainer deals offer more financial stability. Buyers are willing to pay more for this stability, and your team will feel more secure too. 

If one client makes up more than 20-25% of your revenue, expect your valuation to drop. This is a structural risk, no matter how strong the relationship is or was. Client loyalty is harder to count on these days. 

Switching clients to rolling retainers, even for a short time, can make your revenue more predictable. This change can affect how buyers or investors view your business and help your staff feel more secure in their roles. 

Short notice periods, vague terms, and informal deals are warning signs. The more your revenue is secured with solid contracts, the stronger your future projections will be. 

Can you show a reliable pipeline of future work? While your past performance matters, it’s your future prospects that count most. 

3.  Can your business run without you?

Many founders build their agencies on instinct, vision, relationships, and personality. This approach works well until a buyer wants to know what happens if you step back. Being ready operationally is a key value driver. It shows up in clear workflows and processes, not just in what people remember. You need a well-organized database and CRM, straightforward monthly management accounts, and a team of managers who can handle operations. Your business should be able to grow without the founder being involved in everything.

4.  What’s your defensible edge?

In a crowded market, standing out is more than just a buzzword – it directly affects your valuation. Buyers and investors want to know they’re getting something competitors can’t easily copy, so your positioning should be clear, credible, and easy to see. Do you have a unique approach that sets your work apart, a specific sector or client niche, regular thought leadership or content that shows your expertise, industry awards or credentials, and, most importantly, the ability to raise your rates without losing clients? Being able to set your prices is a strong sign of real brand value.

5.  What might come back to bite you?

Legal issues can come up when you expect them and when you don’t. Whether they are manageable or become deal-breakers depends on how well you plan. Spotting and preparing for risks early can save you money down the line. A little legal prevention now can be worth a lot later. 

6. Exit through the gift shop

If you want to sell your business, remember that not all buyers are the same. The type of buyer you talk to will affect every part of the deal, from the price and structure to what your day-to-day life looks like after the sale.

Strategic buyers may pay more for your capabilities or client list, but they often want to integrate your business their way. Private equity buyers usually look for strong businesses with solid management teams that they can support as the company grows. 

Earn-outs are extremely common because so much value is relationship-dependent; you’ll likely need to remain invested and understanding how earn-out mechanics work – what metrics trigger payment, over what period, and what protections you need if a buyer changes direction – is critical to getting full value from. 

Finally, what do you want out of the deal? Whether you plan to leave after the sale or stay on and help with the next phase, your goals will shape the deal and your life after the exit. If you know what you want, you can make sure it matches what others expect.  

If you’re running a creative, digital, or marketing agency and are thinking about your long-term options, we’d love to help you get started, and we’ll never undervalue the opportunity. 

Unlock the full value of your agency with expert legal advice, get in touch with our Creative Digital and Marketing Team today. 

Music can make a campaign unforgettable. 

The right track can instantly elevate a piece of content, add emotional impact, and create a powerful connection with audiences. From social media videos to product launches and brand films, music ties a campaign together. In many campaigns, it becomes the emotional shortcut that audiences remember long after the message itself. 

An increasingly common use of iconic music is in political campaigns. Musicians regularly object to their music being used at political rallies, in campaign videos, or in party political broadcasts without consent. Artists from across the political spectrum have publicly demanded that their music be removed from campaign materials, arguing that the use falsely suggests endorsement or associates their work with causes they strongly disagree with. These disputes regularly make headlines and can quickly dominate the narrative around a campaign. 

Sometimes the issue surfaces within hours of campaign content going live. In other cases, it goes viral before anyone realises there’s a problem. Either way, the result is usually the same: takedown demands, reputational damage, and in some cases legal claims. For brands, agencies and political teams alike, the reputational fallout can travel far faster than the campaign itself. 

For agencies producing marketing and campaign content, understanding how music licensing works in advertising and political communications is becoming increasingly important. A small oversight in music rights can quickly turn a creative success into a legal and PR problem. 

Why music licensing mistakes still happen

Part of the problem is that music rights are often misunderstood. A track may be widely available on streaming platforms, used regularly on social media, or played publicly at events under a performing rights licence. It may seem logical to assume that the same track can be used in marketing content. That assumption is one of the most common – and costly – mistakes made in campaign production. 

However, the law draws a clear distinction between simply playing music and using it as part of a commercial campaign. 

Under UK copyright law, using a song in a campaign video, advertisement, or branded content typically requires a synchronisation licence. This is the permission that allows music to be combined with visual media. Without it, the use of the track is likely to infringe copyright. This is the issue that often arises when music is used in political campaign videos or promotional content without the artist’s permission. In short, widespread availability does not mean a track is free to use in campaign content. 

One song, multiple rights holders

There’s another complication that often catches agencies by surprise: a single song usually involves two separate layers of copyright. The first protects the musical composition – the lyrics and melody – which is normally owned by the songwriter or their publisher. The second protects the sound recording, which is usually owned by the record label. 

When music is used in marketing or campaign content, permission is often required from both rights holders.  

If either licence is missing, the use of the music may still infringe copyright, and the legal consequences can be significant. Rights holders can seek injunctions to remove content, financial damages, and in some cases additional damages where the infringement is considered deliberate or particularly serious. For agencies managing high-profile campaigns and their clients, this can quickly escalate into a negative halo effect that quickly outweighs the benefit of a catchy soundtrack to a viral moment. What begins as a creative shortcut can quickly become an expensive distraction.

When music use becomes a reputational issue

Copyright is only part of the story. 

Artists are also protected by what are known as moral rights, which include the right to object to derogatory treatment of their work. In simple terms, this allows them to challenge uses of their music that distort the work or place it in a context that harms their reputation. Even where the copyright itself is owned by a label or publisher, these rights remain with the creator unless they have been formally waived. 

This is one of the main reasons disputes often arise when music is used in political campaigns. Artists may argue that associating their work with a political message or movement they do not support amounts to a treatment that is prejudicial to their honour or reputation. For artists, the issue often centres on control over how their work – and their identity – is publicly associated. 

There’s also the risk of implying endorsement by an artist through the use of their music. When a recognisable track appears in campaign content, audiences may reasonably assume that the artist has agreed to be associated with the brand, organisation or political message behind it. If that impression is misleading, the artist may argue that the campaign has misrepresented their support, potentially giving rise to a passing off claim.

The growing risk in a social media campaign world

n an era where campaigns are built for rapid digital distribution and social sharing, these issues can escalate very quickly. A campaign video using unlicensed music might reach thousands – or millions – of viewers before anyone realises the permissions are not in place. By the time the issue is identified, the content may already be circulating widely online. 

For agencies, the safest approach is simply to treat music in campaigns as a rights-managed asset, just like photography, film footage, or design work. Tracks that are readily available to listen to are not automatically available to use in marketing content. Where well-known music is involved, obtaining the correct synchronisation licences from both the publisher and the label is usually essential. Early rights clearance is far easier than managing a dispute after publication.

Alternatively, many agencies now rely on:

Production music libraries 

Commissioned compositions that are specifically licensed for commercial use 

Pre-cleared commercial tracks 

These routes can dramatically reduce risk while still allowing creative teams to achieve the desired impact.

The bottom line for agencies

Music will always remain one of the most powerful tools in marketing. But as campaigns become increasingly video-driven and distributed across multiple digital platforms, the legal framework surrounding music use is becoming more relevant for agencies than ever before. 

High-profile disputes between artists and political campaigns show how quickly the use of a track can become both a legal and reputational issue. A campaign soundtrack can amplify a message – or become the story itself. 

Understanding how music rights work – and when licences are required – can make the difference between a campaign that amplifies a brand and one that disappears overnight. 

If your agency produces campaign content that relies on music, it is worth making sure the rights behind that soundtrack are as carefully managed as the creative itself. 

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