Mrs J Burn v Mr J A Sparrow and Mrs R Sparrow T/a RRS Recovery: 1805584/2021
| Jurisdiction | England & Wales |
| Judgment Date | 30 September 2022 |
| Citation | 1805584/2021 |
| Date | 30 September 2022 |
| Court | Employment Tribunal |
| Published date | 13 October 2022 |
| Subject Matter | Contract of Employment |
Case Number: 1805584/2021
10.5 Reserved judgment with reasons – rule 61 March 2017
1
EMPLOYMENT TRIBUNALS
Claimant: Mrs J Burn
Respondent: Mr J A Sparrow and Mrs R Sparrow T/A “RRS Recovery
Services”
Heard by CVP 14-16 June 2022
Before: Employment Judge Rogerson
Members: Mr R Webb
Mr J Rhodes
Representation
Claimant: herself
Respondent: Ms L Halsall (Counsel)
RESERVED JUDGMENT
1. The claimant’s complaints of direct marital discrimination (section 13 and section
8 Equality Act 2010) are not well founded and are dismissed.
2. The claimant has not satisfied the requirements of section 38 Employment Act
2002 (failure to give employment particulars) and that complaint also fails and is
dismissed.
REASONS
Issues
1. By a claim form presented on 30 October 2021, the claimant brought
complaints of direct m arital discrimination. At a preliminary case
management hearing on 12 January 2022 the issues to be determined
were identified and orders were made to help the parties to prepare for
this hearing (see pages 82- 95 in the bundle).
Case Number: 1805584/2021
10.5 Reserved judgment with reasons – rule 61 March 2017
2
2. The claimant alleges 4 acts of less favourable treatment were committed
by Mr J. A Sparrow (the respondent) because she is married, relying on
the protected characteristic of marriage (section 8 Equality Act 2010).
These are:
2.1 In May 2021, Mr Sparrow discussed placing the claimant on furlough
leave with Mr Burn (the claimant’s husband) before he discussed this
with the claimant.
2.2 On 29 August 2021 Mr S parrow told Mr Burn t hat the claimant’s job
was in jeopardy following Mr Burn’s resignation and had discussed
the claimant’s employment with Mr Burn having previously been told
not to do so.
2.3 On 23 September 2021 the claimant was given notice of dismissal
notice ending her employment on 30 September 2021.
2.4 On 29 September 2021 the respondent required the claimant to either
data cleanse her personal laptop or provide her laptop to the
respondent to perform a data cleanse.
3 It was agreed that the first complaint if proven may have been presented
out of time but the common issues for all the alleged unlawful acts were:
3.1 Did the respondent do the alleged acts? (allegation 2.1 is denied by
the respondent. The context for allegation 2.2 was disputed and
allegations 2.3 and 2.4 are admi tted but the reason for the treatment
was in dispute).
3.2 Was it less favourable treat ment? The Tribunal will decide whether
the claimant was treated worse than someone else was treated
(actual comparator) or would have be en treated (hypothetical
comparator) recognising that there must be no material differences
between the circumstances of the comparator and the claimant.
3.3 Was it because of the claimant’s marriage?
The Comparators
3. For the ‘data cleanse’ allegation, the claimant relies upon an actual
comparator we have referred to as Ms S who worked for the respondent from
April 2019 to February 2021. She worked as a Day Call Operator based at
the respondent’s York depot. She resigned in February 2021. Ms S is not
married. After resigning Ms S was not asked to data cleanse her laptop or
have h er laptop cleansed or required to provide any warranties (see
paragraph 66 of the claimant’s witness statement ‘CWS’). Alternatively, the
claimant relies on a hypothetical comparator in the same material
circumstances as the claimant but who was not married.
4. The respondent disputes that Ms S is an appropriate comparator because it
says the circumstances of the claimant and Ms S are materially different. The
claimant was a Night Call Operator. She worked exclusively from ho me. She
used her personal laptop to perform her role. She was not living with and in a
close relationship with a senior employee of the respondent who had left to
work for a competitor at the time she left her employment. None of those
material circumstances applied to Ms S. The respondent contends that a
hypothetical comparator in the same material circumstances as the claimant
would have been treated in the same way as the claimant was treated.
5. The claimant also relies upon an actual comparator Mr W who worked as a
commercial fitter/roadside technician based at the York depot. Mr W was in a
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