United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR BRADLEY (of Counsel) Instructed By: Mr C Freeman Messrs Keith Levin & Co Solicitors 'The Willows' 2 Rupert Road Huyton Liverpool L36 9TF
For the Respondent	MR GINNIFF Instructed By: Mr R C Hall Richard C Hall & Partners Crown Buildings 121A Saughall Road Blacon Chester CH1 5ET


 


MR JUSTICE DOUGLAS BROWN:

1. From a Decision of the Employment Tribunal at Liverpool, the Decision being dated 22 May 2001, it is an application and appeal to which a Restricted Reporting Order has been made and the parties are only identified by initials.
2. In the proceedings Miss X claims sexual discrimination, unfair dismissal, constructive dismissal and, in a separate application, victimisation.
3. The sole question for the decision of this Employment Appeal Tribunal is whether the majority of the Tribunal came to the correct conclusion when they decided that Miss X should be at liberty to adduce in evidence a video recording made secretly by her on the premises of the Respondents.
4. It is only necessary to mention the facts very briefly. Miss X was employed by Mr Y and Miss Z who live together as if man and wife but are not married. She was employed as a nanny to look after their young child, J, and from 1997 until 2000 she carried out those duties. Her principal allegation is that for a substantial period of time she was the victim of sexual harassment; that is physical harassment at the hands of Mr Y.
5. Mr Y in his response admits that he had a sexual relationship with Miss X but completely denies that it was forced upon her and, he says, that everything that happened was consensual and Miss Z, although in ignorance of this relationship described by Mr Y until a late stage, also in her response rejects Miss X's case.
6. Towards the end of her employment Miss X, in an effort to provide some evidential support, made a video recording of herself and Mr Y and, we are told, also featuring on this video film is the child J. The film lasts some hour or an hour and a half. We have no detail of the film and neither did the Employment Tribunal. They did not see the film and were not provided with a synopsis of the events depicted on the film.
7. The appeal raises questions which were raised before the Employment Tribunal involving the Human Rights Act 1998 and several provisions of the European Convention on Human Rights.
8. For the most part the grounds of appeal concentrate on the rights of Mr Y and Miss Z but they do refer to the rights of the little boy, as J, who features to an extent that we cannot form any view about because we have not seen the film or a synopsis. Without any doubt at all this was known to the Employment Tribunal as J features on the film.
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 appears 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.