XXX v YYY

1. LORD JUSTICE BUXTON: The parties in this appeal have been referred to simply by initials in the interests of the child who is involved, and no doubt that will properly continue. But for the avoidance of doubt we either make or continue an order under section 39 of the Children and Young Persons Act 1933 that prohibits the publication of any information that might lead directly or indirectly to the identification of the infant, J, who is referred to in these proceedings.

2. This is an appeal in an interlocutory matter from a decision of the Employment Appeal Tribunal given in April 2003. It arises in Employment Tribunal proceedings which have been in progress for a most unfortunately long period of time without still having reached any final trial.

3. The allegations can be stated comparatively shortly. The applicant is Miss X. She was employed by Mr Y and Miss Z as a nanny to look after their young child, J. Y and Z (if I may hereafter refer to the parties simply by their initials) are not married to each other, but they live together as man and wife and have done so for some considerable time.

4. The employment in question started in September 1997. Miss X resigned in May 2000. Her claim is first, that she was constructively dismissed; and second, that she was in that employment a victim of discrimination on grounds of gender. Her complaint, set out in a detailed statement attached to her notice of application, is that unwanted sexual advances of a serious nature were made to her by Y, and further, that when she complained about this to Z she was not taken seriously or her complaint was turned away. Nothing was done to terminate the behaviour complained of.

5. The defence on the part of both respondents, Y and Z, is that no acts took place that could be construed as sex discrimination or harassment or any ground for Miss X legitimately leaving her employment. It was put thus in paragraphs 6 and 7 of the notice of appearance:

"6. Each and every allegation of the Applicant which could amount to sex discrimination and/or harassment and/or any other cause of action that could arise from the Applicant's employment with the Respondent is denied.

7. The 2nd Respondent vehemently denies that [X] at any time during her employment spoke to her concerning her allegations in relation to [Y]. This is not surprising given that [X] had been involved in a sexual relationship with [Y] without the knowledge of [Z]."

It is then said that, as I have already recorded, Y and Z are common-law husband and wife.

6. Various reasons are given why it might have been the case, contrary to the grounds given in her notice, that Miss X left her employment. Paragraph 11 says:

"Alternatively, the Respondents can only assume that the reason [X] resigned from her position was because the sexual relationship between her and [Y] broke down."

There is, therefore, a stark difference between the parties in terms of the nature of the relationship. Miss X says that it was and always was extremely unwelcome on her part when Y made sexual advances to her. Y and Z say that in fact there was a consensual relationship between X and Y; whatever might be said about it, it did not form any ground of legitimate complaint on the part of X since she was to be taken to have consented to it.

7. Towards the end of her time of employment X made a video recording. It is not known exactly when. She did this by concealing a camera in the kitchen of the house where the respondents lived and in which she was employed. It shows X and Y together. It also shows the child, J. Mr Y did not know at the time that he was being video-recorded.

8. Whether this video should be used in evidence has been the subject of extensive dispute between the parties and resort to the Tribunal. The question was first raised in an interlocutory application by the respondents in May 2001. Various matters were debated, including the question which we are concerned with, whether the video could be adduced in evidence by Miss X.

9. The Tribunal at that stage did not view the video. It was concerned with general questions arising under the European Convention of Human Rights. It conceived that there was in this case a potential balance to be struck between Article 6 of the Convention guaranteeing a right to fair trial, and Article 8, the provision with respect for private and family life. The respondents' complaint was that covert video-recording had taken place in their home and as such it was an interference with their Article 8 rights that the Tribunal should not contemplate.

10. The majority of the Tribunal on that occasion took the view that the interference, if it was such, was justified in the circumstances of the case. They point out that although the filming had taken place at the home of the respondents it was also the place of work of the applicant. They further considered that the allegations made by the applicant, Miss X, should be tried out, and that the need to do that outweighed any objection arising under Article 8.

11. Y and Z appealed against that decision. On 11 July 2001 the Employment Appeal Tribunal ordered that the matter 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 when they came to try the matter. Now, it is right to say that that appeared on its face to be simply a direction to the Tribunal to consider the matter in the light of the potential rights of J. At the same time, however, the Employment Appeal Tribunal regarded the matter as not being closed in the sense that a final decision had not been made as to admissibility, and they remitted the case because they did not think that that decision could be made without considering the rights of J. I mention that point because at one stage some question arose as to whether the Employment Tribunal was in some way precluded from reconsidering the question of relevance in the context of the decision on admissibility. But Mr Ginniff, who has conducted this appeal most helpfully and extremely fairly, properly drew our attention to the view of the Employment Appeal Tribunal, just set out, that the matter was not regarded as closed or final on any relevant aspect before the question of J had been considered.

12. The same Employment Tribunal (made up of exactly same the people as had given the decision in May 2001) therefore reconsidered the matter at a hearing in February 2002. They concluded, so far as J was concerned, that it was not a breach of confidence in respect of J that he happened to feature on a video taken by others and for other purposes, and therefore his rights would not be infringed, at least by use of the video within the legal process as opposed to general publication of it. We shall have to come back to that view shortly.

13. The Tribunal then turned to the question of whether interference with any right of J or anyone else was necessary for the protection of the rights of the applicant. By this time they had actually viewed the video, acting upon what I might describe as a fairly strong indication by the Employment Appeal Tribunal that they were unlikely to be able to dispose of the matter fairly without seeing it. They said this at paragraphs 16 to 18 of their determination:

"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."

Miss X appealed against that decision to the Employment Appeal Tribunal. Regrettably the appeal was not heard for another 14 months, in April 2003. It is from the Employment Appeal Tribunal's then decision that this present appeal is brought.

14. The Employment Appeal Tribunal decided that on both grounds that had been before it the Employment Tribunal had reached conclusions that no reasonable tribunal could have reached. The first was the question of the position of J with regard to the European Convention. The Employment Appeal Tribunal was adamant that the taking of the video in his home indeed infringed his Article 8 rights, bearing in mind in particular that public description or publication of the images even within the litigation process would be severely embarrassing for him if it was on record in public at a time when he became older and was able to understand what had happened in his presence. The Employment Appeal Tribunal said:

"A more obvious infringement of his right to respect to his private life is hard to envisage."

That conclusion is not in issue before us. The question is how that impacts on the rest of the case.

15. The Employment Appeal Tribunal then went on to the finding of the Employment Tribunal as to the relevance of the video. It said this in paragraph 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."

Those are broadly the passages that I have already cited. I continue with the quotation:

"As noted, they do not make clear when on Y and Z's case the sexual relationship between X and Y ceased... 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."

The Employment Appeal Tribunal therefore determined that the video prima facie was evidence that should be given in the case, but they were concerned that the public playing of the video recording would contravene the rights of J, in particular under Article 8. They therefore ordered, and it is not suggested that it was outside their powers to order, that the video recording should be viewed by the Employment Tribunal in private. The Employment Appeal Tribunal added that the relevance of that evidence would be a matter for the Employment Tribunal to determine in the light of what evidence was given and not just the parties' pleaded cases.

16. Y and Z appeal against that determination. They say that the Employment Appeal Tribunal was wrong, alternatively it was outside its powers in determining that the video was relevant at all. Plainly that is the first question that has to be addressed in any evidentiary issue. The first and most important rule of the law of evidence, though one that is not always perceived or observed, is that evidence is only admissible if it indeed is relevant to an issue between the parties.

17. The question of relevance is also of importance in the context of the concerns in this case about competing rights under Article 6 and Article 8; because if one gets to that stage it affects the balance between those two competing interests urged on courts by the recent decision of this court in Jones v University of Warwick .

18. I therefore turn to the bases upon which the Employment Appeal Tribunal said that the video recording was contrary to the view of the Employment Tribunal, who have viewed it, relevant or potentially relevant to the issues in the case. The first ground was that the notices of appearance do not make clear when on Y and Z's case the admitted sexual relationship between X and Y ceased. It was therefore possible, if and when that point was determined or properly pleaded, that the video may have been taken after that date; and for that reason it was impossible to conclude until that was determined, that the conduct on the video recordings was irrelevant.

19. I have to say, with respect, that I had great difficulty with that view, and Mr Ginniff's persistent argument has not dispersed the problem. What I will describe as the pleadings present a stark dispute as to whether the relationships between these two people, X and Y, were consensual or not consensual. It is nowhere suggested by either party that the relationship started off in one form and then transferred to another; that is to say it is nowhere suggested that the relationship was originally unwelcomed and then became consensual, or vice versa. In those circumstances I am afraid that it is not possible to see how it would affect the issues between the parties as at presently set out if the conduct shown on the video took place after the date on which the consensual relationship is said to have terminated. I quite accept that there might be a different case (and that is the case that counsel sought to put to us) in which it was said by Miss X that although she had at one time consented, she no longer did. But that is not what she says and not, in my view, what she could be heard to say now in view of the way in which she has presented her case previously.

20. For my part, therefore I find the timing point one that is, with respect to the Employment Appeal Tribunal, not persuasive.

21. Secondly, the reference to the demeanour and actions of Y as shown in the recordings. The Employment Tribunal has seen the demeanour and actions of Y on the video, which neither ourselves nor the Employment Tribunal has, and has determined that they do not assist Miss X's case. There is no ground, in my judgement, for going behind that. It was faintly suggested in argument that the perception of the Employment Tribunal might be open to question. But if that was the ground upon which their determination was sought to be challenged, then at the very least the Employment Appeal Tribunal ought to have been asked to view the video itself so that it could either determine that question, or decide whether the question was relevant at all. That matter was really never raised until late in the course of argument before this court.

22. I would therefore hold that, on the case as it stands, the video is irrelevant for the reasons given by the Employment Tribunal. Being irrelevant, it is not evidence in the case at all; and secondly it is not in any event something to be put in the balance struck between Article 6 and Article 8.

23. I bear in mind in so ruling that these are Employment Tribunal proceedings which are sometimes - and I do not encourage this, but it is realistic to note - attended by a degree of informality. It is possible in some circumstances (or at least I would not wish to rule out the possibility) that the case may take a turn different from that which is properly to be seen from the pleadings at the moment: so that an issue did arise, which at the moment does not arise, to which the Employment Tribunal thought that the video might be relevant. If such a contingency should arise, this judgment does not prohibit the Employment Tribunal from re-engaging with the present question. But that is certainly not the case at the moment. On the case as it stands the Employment Tribunal was entirely right in the decision that it gave.

24. I would therefore grant permission for this appeal to be brought and on the substance I would allow the appeal.

25. LORD JUSTICE MAURICE KAY: The judgment of the Employment Appeal Tribunal was essentially that the Employment Tribunal decision at paragraphs 16 to 18, which has been set out by my Lord, was irrational. It is described as a decision that no reasonable Employment Tribunal could have reached. I do not consider that the Employment Appeal Tribunal was entitled to come to that conclusion. The Employment Tribunal had seen the video recording and had come to a clear and reasoned conclusion about its potential relevance in these proceedings. In short, it did not advance X's case and in the light of the issues in the case as presently defined it had no probative value. The Employment Appeal Tribunal had not seen the video recording. Moreover, it provided, in my judgment, no convincing reason as to why it considered the Employment Tribunal's assessment of it to be irrational.

26. In these circumstances I simply do not see how the Employment Appeal Tribunal could properly have concluded as it did and accordingly I, too, would allow this appeal.

27. SIR MARTIN NOURSE: I agree.

(Appeal allowed; Respondent do pay the Appellants' costs of the appeal, such costs summarily assessed at £5,000; costs assessed pursuant to Community Legal Service Costs Regulations 2000).