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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Xxx v. Yyy [2003] UKEAT 0729_01_0904 (9 April 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0729_01_0904.html Cite as: [2003] UKEAT 729_1_904, [2003] UKEAT 0729_01_0904

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APPEARANCES

 

For the Appellant	MR N GINNIFF (of Counsel) Instructed by: Messrs Steggles Solicitors Crown Buildings 121A Saughall Road Blacon Chester CH1 5ET
For the Respondent	MR R BRADLEY (of Counsel) Instructed by: Messrs Keith Levin & Co Solicitors "The Willows" 2 Rupert Road Huyton Liverpool L36 9TF


 


THE HONOURABLE MR JUSTICE MITTING

1. On 19 September 1997 X started work as a nanny for Y and Z's son J. On 5 May 2000 she resigned.
2. On 7 July 2000 she submitted an application to the Employment Tribunal complaining that she had been the victim of sex discrimination under section 6 of the Sex Discrimination Act 1975 and had been constructively and unfairly dismissed. The basis of her complaint is her allegation that Y, J's father, had, since November 1997, made unwelcome and improper sexual advances towards her.
3. On 17 October 2000 she made a further complaint of victimisation under section 4 of the 1975 Act which the Employment Tribunal correctly treated as a fresh application.
4. On 11 August and 1 November 2000 Y and Z submitted Notices of Appearance in response to the two applications.
5. In the first Y and Z stated that X:

"…had been involved in a sexual relationship with Y without the knowledge of Z."

In the second Y and Z stated that X's allegations were made:

"Following the breakdown of a consensual sexual relationship between [X] and [Y]."

In neither did Y and Z state when the sexual relationship is said to have ended.

6. Unknown to Y or Z and on an unknown date X secretly made a video recording of events one morning in the kitchen of the family home of Y, Z and J. The video records sexual advances made by Y to X in the presence of J who is shown in much of the footage depicting that conduct. It is unnecessary to describe, in what is a public decision, what is shown in the video footage any further.
7. By a decision entered on 22 May 2001 the Employment Tribunal decided a number of preliminary issues, the second of which concerned the video recordings. By a majority the Employment Tribunal decided that X should be at liberty to adduce the video recording in evidence. In its Extended Reasons it decided that the rights of Y and Z to private and family life under Article 8 of the European Convention on Human Rights had been infringed by the covert filming; but that that interference was justified by reason of the fact that Y and Z's home was also X's place of work.
8. The Employment Tribunal did not say so expressly, but implicit in its decision is that the admission of the video footage was necessary for the protection of X's right to a fair hearing of her complaint under Article 6. The Employment Tribunal did not view or have a synopsis of the video recording in reaching that decision.
9. Y and Z appealed to the Employment Appeal Tribunal. By an Order of 17 July 2001 the Employment Appeal Tribunal adjourned the Preliminary Hearing of the appeal and ordered that the matter be remitted for hearing to the Employment Tribunal:

"In accordance with the judgment of the Employment Appeal Tribunal."

10. The Employment Appeal Tribunal was concerned with the Convention rights of J. At paragraph 9 of its decision it stated:

9 "We have come to the conclusion that it is impossible to arrive at a final decision on admissibility of this material without a question of J's rights under the Convention being considered. We are told by Counsel, who both appeared below, that this did not feature in any noticeable way before the Employment Tribunal and certainly the question of J's rights do not receive any mention in the Employment Tribunal's Extended Reasons."

10 We have come to the firm conclusion that this matter should be remitted to the same constituted Tribunal to consider the question of the rights of the boy, J, in relation to this video filming and in relation to the admissibility of the video material before them when they come to try the matter. How they approach that, of course, will be a matter entirely for the Employment Tribunal but we think it will be difficult for them to carry out that exercise properly without seeing either a very full synopsis or probably seeing the video film itself, to see how often on it the boy, J, appears; what he is doing, what may be being done to him and that material we think ought to be before the Employment Tribunal. We would expect them to have it, probably in the form of looking at the video film itself.

11 So the decision of this Employment Appeal Tribunal is that this matter be remitted to the same constitution of the Employment Tribunal at Liverpool for the matters we have mentioned to be resolved and the appeal, so far as Mr Y and Miss Z is concerned, stands over as adjourned."

11. On 8 February 2002 the Employment Tribunal heard some evidence from X and viewed the video recording in private. It correctly directed itself as to the effect of Article 8 in paragraphs 9 to 11 of its decision, in which it noted that the admissibility of the evidence turns on the interpretation of Article 8 of the European Convention on Human Rights, Article 8 (1) provides that everyone has the right to respect for his private life. It was conceded that "publishing" a video featuring J would be an infringement of that right. However, under Article 8 (2) interference by a public authority with the exercise of that right is permitted, provided it is in accordance with the law and is necessary for the protection of the rights and freedom of others. For this purpose the Tribunal is a public authority.
12. Its conclusion is set out in paragraphs 12 to 14.

12 "It was suggested that this test was not satisfied in the instant case in that there had been unlawful action on the part of the Applicant, namely breach of confidence. We did not consider that this was a case in which such a breach had taken place. The cases to which we were referred on this subject appeared to proceed on the basis of some sort of unspoken but inferred assumption between the parties as to the limits that might exist on the disclosure of information etc. We remind ourselves that we are dealing solely with the rights of J.

13 It seems to us that no such inference could arise here. It cannot be a breach of confidence to show a video on which J happens to feature as an "incidental" character, any more than it would be to publish videos of a street taken by close circuit television which happened to feature passers-by. If J (or those that might represent him) wished to object to the showing of the video, it would be on the grounds of what it showed of others, not himself.

14 We therefore conclude that it would be in accordance with the law for the video to be shown."

13. It then went on to consider a question not remitted to it by the Employment Tribunal in paragraph 15:

15 "We then turn to the question of whether the interference is necessary for the protection of the rights of the Applicant."

And concluded in paragraphs 16 to 18 that:

16 "Having viewed the video, it is our unanimous view that it does not advance the Applicant's case whatsoever. It is wholly consistent with the case of the first Respondent that there was a consensual sexual relationship between himself and the Applicant at the relevant time.

17 We therefore do not consider it is necessary that the video be shown to protect the rights of the Applicant. It simply does not promote her rights.

18 Our view is unanimously that the video should not be adduced in evidence and that, even leaving to one side the Convention, if we were invited to consider the question, that it should not be allowed in evidence, simply on the basis that it has no probative value."

14. The first conclusion concerning the rights of J is criticised by Y and Z and the second conclusion concerning relevance by X. Both have appealed to this Tribunal.
15. In the view of this Tribunal the Employment Tribunal did not ask itself the right questions in reaching both conclusions and in each case reached conclusions which no reasonable Tribunal could have reached.
16. As to the first, it is obvious to us that the rights of J to protection of his private and family life would be infringed by "publishing" (to adopt the Employment Tribunal's word in paragraph 10 of its decision) the video recording, which this Tribunal understands to mean playing in public during a hearing under Rule 10 (2) of the Employment Tribunal Rules 2001. The video recording was made covertly without the knowledge or permission of J's parents in his home. It depicts him present while his father Y makes sexual advances to X. If the video recording is played in public its contents can be described in newspapers and it is not far-fetched to envisage that it might find its way onto the internet or be circulated as a video recording amongst those known to Y and Z.
17. The public description or publication of such images would be severely embarrassing to him as he grows older. A more obvious infringement of his right to respect for his private life is hard to envisage. It is quite different from the Employment Tribunal's example of a video recording made by closed circuit television in a public street.
18. The Employment Tribunal's second conclusion as to the relevance of the video recording was made on the basis of the passages from the Notices of Appearance already referred to. As noted, they do not make clear when on Y and Z's case the sexual relationship between X and Y ceased. The conduct depicted in the video may therefore have occurred after that time. Until it is established by a finding of the Employment Tribunal on the basis of evidence it is impossible to conclude that the conduct depicted on the video recordings is irrelevant. Further, the demeanour and actions of Y shown in the recordings may well be relevant. It all depends on what evidence precisely is given by X and Y at the hearing.
19. For those reasons, the Employment Tribunal's decision on this question too is flawed.

What should be done

20. Helpful indications of how issues such as these should be dealt with were given by the Lord Chief Justice giving the judgment of the Court of Appeal in Jones v University of Warwick on 4 February 2003. That case concerned a video recording made by an enquiry agent in a personal injury case in which the Claimant's Article 8 rights had unquestionably been infringed.
21. We read from paragraphs 26 to 28 of the judgment.

26 "Mr Weir [Counsel for the Claimant] argues that unless it was necessary for the insurers to take the actions they did, the evidence must inevitably, at least in a case such as this, be held inadmissible. He submits that otherwise the court would be contravening the duty that it is under, pursuant to section 6 of the Human Rights Act not to contravene Article 8. While the court should not ignore the contravention of Article 8, to adopt Mr Weir's approach would fail to recognise that the contravention would still remain that of the insurer's enquiry agent and not that of the court. The court's obligation under section 6 of the Human Rights Act is to "not itself act in a way which is incompatible with a convention right" (see Venables v News Group Newspapers Ltd [2001] 2 WLR 1038 at P.1048/9 paras. 24-27).

27 As the Strasbourg jurisprudence makes clear, the Convention docs not decide what is to be the consequence of evidence being obtained in breach of Article 8 (see Schenk v Switzerland [1988] 13 EHRR 242 and PG and JH v United Kingdom application no. 44787/98 (25/9/2001 paragraph 76). This is a matter, at least initially, for the domestic courts. Once the court has decided the order, which it should make in order to deal with the case justly, in accordance with the overriding objectives set out in Part 1.1 of the CPR in the exercise of its discretion under Part 32.1, then it is required or it is necessary for the court to make that order. Accordingly if the court could be said to have breached Article 8.1 by making the order which it has decided the law requires, it would be acting within Article 8.2 in doing so.

28 That leaves the issue as to how the court should exercise its discretion in the difficult situation confronting the district judge and Judge Harris. The court must try to give effect to what are here the two conflicting public interests. The weight to be attached to each will vary according to the circumstances. The significance of the evidence will differ as will the gravity of the breach of Article 8, according to the facts of the particular case. The decision will depend on all the circumstances. Here, the court cannot ignore the reality of the situation. This is not a case where the conduct of the defendant's insurers is so outrageous that the defence should be struck out. The case, therefore, has to be tried. It would be artificial and undesirable for the actual evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case. We accept Mr Owen's [Counsel for the defendants] submission that to exclude the use of the evidence would create a wholly undesirable situation. Fresh medical experts would have to be instructed on both sides. Evidence which is relevant would have to be concealed from them, perhaps resulting in a misdiagnosis; and it would not be possible to cross-examine the claimant appropriately. For these reasons we do not consider it would be right to interfere with the Judge's decision not to exclude the evidence."

22. In this case the Article 8 rights of J (and Y and Z if relevant) and the Article 6 rights of X must be weighed. Both can be securely protected if the course suggested by this Tribunal in argument is followed. The Employment Tribunal is a public authority under section 6 of the Human Rights Act 1998. The admission of the video recordings in public session would infringe J's (and possibly Y and Z's) Article 8 rights. Therefore, Rule 10 (3) of the Employment Tribunal Rules of Procedure 2001 is engaged. It provides by way of an exception to the rule that the hearing must be in public as follows:

(3) Notwithstanding paragraph (2), a tribunal may sit in private for the purpose of hearing evidence from any person which in the opinion of the tribunal is likely to consist of –

(a) information which he could not disclose without contravening a prohibition imposed by or by virtue of any enactment…"

23. The public playing of the video recording would contravene a prohibition against the infringement of those rights by virtue of section 6. Therefore the video recordings should be viewed by the Employment Tribunal in private. Their relevance will be a matter for the Employment Tribunal to determine in the light of all the other evidence, not just the parties' pleaded cases.
24. Because of difficulties hitherto experienced in the case, this case should be remitted to an Employment Tribunal, freshly constituted, for it to conduct the full hearing.