Veitch Penny LLP - Exeter | Crediton, Devon

Case

XXX v YYY and another
Court of Appeal - (10 February 2004)

Issues

(1) Sex discrimination
(2) Tribunal procedure
(3) Evidence

Facts

The Claimant, X, had worked as a Nanny caring for the Defendants’ child from 1997 to May 2000. The First and Second Defendants lived together as husband and wife. The Claimant resigned in May 2000. She commenced proceedings claiming that she had been discriminated against on grounds of her sex and had been constructively dismissed. The Claimant alleged that the First Defendant, Y, had made unwanted sexual advances of a serious nature towards her during the course of her employment. She had complained to the Second Defendant, Z, about this but her concerns were dismissed. During the latter stages of her employment, X concealed a video recorder in the kitchen of the Defendants’ home and was able to obtain a tape of her caring for the child whilst Y made sexual approaches towards her.

X alleged that she had been constructively dismissed by virtue of Y’s conduct which she believed amounted to sex discrimination and harassment. The Defendants responded by alleging that there had been a consensual relationship between X and the Y throughout the period of employment.

A preliminary issue arose as to whether X should be entitled to use the video recording as evidence in the Tribunal proceedings. The Employment Tribunal decided that the rights of the Defendants to a private and family life under Article 8 of the European Convention on Human Rights had been infringed by the covert filming. However the interference was justified because the Defendants’ home was also X’s place of work. Article 8(1) provides that: “Everyone has the right to respect for his private and family life, his home and his correspondence.” Article 8(2) allows interference with such a right when it is “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of disorder or crime, for the protection of health or morals, or for the protection of rights and freedoms of others.” Accordingly the rights of X under Article 6 of the European Convention to a fair trial outweighed the Defendants’ right under Article 8. The Tribunal found that the recording could be adduced as evidence.

The Defendants appealed to the Employment Appeal Tribunal. Their Appeal was allowed and the matter was remitted to the original Tribunal for re-hearing. The Tribunal had to consider the convention rights of the Defendants’ child, L, as he had appeared in the video. It was concerned that those rights should be considered in deciding whether the video was admissible.

On remittal the Tribunal viewed the recording and found that the material did not advance the Claimant’s claim in any way and therefore should not be adduced at Trial. It also concluded that the child’s rights under Article 8 were not infringed.

The Claimant appealed against the decision. The Employment Appeal Tribunal allowed her Appeal and found that the decision of the Tribunal had been incorrect in finding as it did on the issue of probity. The Tribunal could not have properly considered whether the matters recorded were or were not inappropriate. Until evidence was considered that determined whether there had been a consensual relationship between the Claimant and the First Defendant

The Defendants appealed against the decision to the Court of Appeal. The Defendants submitted that the Appeal Tribunal had been incorrect in finding that the tape had a probative value.

Decision

The Appeal would be allowed.

The Tribunal’s decision that the recording was irrelevant was a decision that it had been entitled to make. Evidence could only be admitted if it was relevant to the proceedings in question. The Tribunal had been in a position to consider whether the recording supported the Claimant’s case. Its conclusion that it had not done so was a decision that it had been entitled to reach. Neither party had alleged at any point during the proceedings that there had been a change in the nature of the relationship between the Claimant and the First Defendant. Accordingly the Employment Appeal Tribunal’s reasoning had been mistaken.

Comments

This case found that an Employment Tribunal should sit in private if sitting in public would lead to an infringement of Human Rights under the European Convention. Rule 10(3) of the Rules of Procedure allows a Tribunal to sit in private to hear evidence from any person which is likely to consist of “information which he could not disclose without contravening a prohibition imposed by or by virtue of any enactment”. Whilst given the circumstances of this case the judgment is understandable, but this decision attacks the principle that Tribunal Hearings should be heard in public. This creates some tension given that the UK legislature has chosen to deal with circumstances such as these by placing restrictions on reporting rather than by holding all or part of the hearing in private.