XXX v YYY

Evidence is admissible only if it is relevant to an issue between the parties. Where the pleadings present a stark dispute about whether conduct was consensual, a covert recording does not become relevant merely because its timing might theoretically support a different case that has not been pleaded. An appellate tribunal should not displace a first-instance tribunal’s assessment of a recording that it has viewed unless there is a proper basis for doing so. Irrelevant evidence is not part of the evidence in the case and does not enter the balance between the fair-trial right under Article 6 and privacy rights under Article 8 of the European Convention of Human Rights. The position may be reconsidered if the issues materially change.

An employment tribunal claim alleged constructive dismissal and sex discrimination arising from unwanted sexual advances by an employer. The respondents contended that the relationship was consensual. The claimant secretly recorded a video in the respondents’ home, which was also her workplace, showing the claimant and one respondent, and the child who lived there.

The Employment Tribunal viewed the recording and decided that it did not advance the claimant’s case and had no probative value. The Employment Appeal Tribunal held that conclusion irrational, treated the recording as potentially relevant, and directed that it be viewed privately because of the child’s Article 8 rights. The respondents appealed. The central issue was whether the recording was relevant on the case as pleaded.

1. Appeal allowed. The Employment Appeal Tribunal was not entitled to conclude that no reasonable Employment Tribunal could have reached the decision at paragraphs 16 to 18 of its determination. The Employment Tribunal had viewed the recording and had reached a clear and reasoned assessment of its potential relevance.
2. Relevance is the threshold question in an evidentiary issue. The pleaded cases presented a stark dispute about whether the relationship between the claimant and the first respondent was consensual. Neither side pleaded that it began in one form and later changed. On those pleadings, the possibility that the recording was made after an alleged consensual relationship had ended did not make it relevant.
3. The Employment Tribunal’s assessment of the first respondent’s demeanour and actions on the recording was one it was entitled to make. The Employment Appeal Tribunal had not viewed the recording and gave no convincing reason for treating the assessment as irrational.
4. Because the recording was irrelevant, it was not evidence in the case and did not fall to be placed in the balance between Article 6 and Article 8 of the European Convention of Human Rights. The court left open the possibility of reconsideration if the case later took a materially different turn and an issue arose to which the recording might be relevant.
5. Costs were awarded to the appellants, summarily assessed at £5,000.

• Court of Appeal (Civil Division): Appeal allowed against the Employment Appeal Tribunal’s April 2003 decision.
• Employment Appeal Tribunal: Held that the Employment Tribunal’s conclusions on the child’s Article 8 position and the recording’s relevance were conclusions that no reasonable tribunal could have reached. It directed private viewing of the recording.
• Employment Tribunal: After viewing the recording, concluded that it did not advance the claimant’s case, had no probative value, and should not be admitted.