Mrs J Burn v Mr J A Sparrow and Mrs R Sparrow T/A “RRS Recovery Services” Heard by CVP 14-16 June 2022 — 2022

Mrs J Burn brought a claim of direct marital discrimination arising from four alleged acts: a furlough conversation in May 2021, a discussion between Mr Sparrow and Mr Burn on 29 August 2021, the dismissal letter of 23 September 2021, and the 29 September 2021 data cleanse request. The tribunal preferred Mr Sparrow's evidence on the disputed facts, found that the May 2021 furlough allegation was not proved, and held that the tribunal should apply the Hawkins/Gould approach rather than the wider reading of Dunn advanced by the claimant.

On the 29 August 2021 conversation, the tribunal accepted that Mr Sparrow was genuinely concerned about confidentiality because Mr Burn was leaving to work for a direct competitor and Mrs Burn worked from home with access to the respondent's Apex system and other sensitive information. The tribunal found the concern was about the close personal relationship and shared household circumstances, not about the fact that Mrs Burn was married. It also accepted Mr Sparrow's evidence that he would have had the same concern about any employee in the same household situation, whether the relationship was marital or not, and it noted that Mrs Burn herself took steps after 12 September 2021 to separate her work from Mr Burn to preserve confidentiality.

The tribunal found that the dismissal on 23 September 2021 was for two genuine reasons: reorganising the night shift work because of reduced workload, and wider confidentiality concerns linked to working from home after Mr Burn left to join a competitor. It rejected the suggestion that the dismissal was because Mrs Burn was married, or because of who she was married to, and concluded that a hypothetical unmarried comparator in the same material circumstances would also have been dismissed. The tribunal also rejected the proposed comparators Ms S and Mr W as materially different.

The 29 September 2021 request to cleanse data from Mrs Burn's personal laptop was found to be a response to the respondent's need to secure company and personal data, including PID, and to comply with data protection obligations. The tribunal held that this request was specific to Mrs Burn's circumstances and did not amount to less favourable treatment because of marriage. Because the discrimination claim failed, the section 38 Employment Act 2002 complaint for failure to provide employment particulars also failed.