XXX v YYY and another, EAT 9.4.03 (0729/01 & 0413/02) IDS Brief, 743 October 2003, [2003] IRLR 561

In XXX v YYY, the EAT had to consider what happens when an Applicant's right to a fair trial collides with a bystander's right to respect for private and family life.

X worked as a nanny for Y and Z's son, J. She resigned and claimed that she had been discriminated against on grounds of her sex and constructively dismissed. She alleged that Y, J's father, had made unwelcome sexual advances towards her. X tried to have admitted into evidence at the Tribunal a video recording that she had made covertly one morning in the kitchen of Y and Z's house, in the presence of J. She claimed that the video showed Y making sexual advances towards her.

The Tribunal decided that X's infringement of Y and Z's rights to respect for private and family life were justified because the family home was also X's place of work. Y and Z appealed. The EAT first remitted the case back for the Tribunal to decide whether J's Convention rights affected the issue.

The Tribunal viewed the video in private and decided that admitting the video could be "in accordance" with the law (justifying an interference with J's rights) because J's rights of confidence were not breached as he was only an "incidental" character. It then decided that the tape should not be admitted because it did not advance X's case and was not therefore essential to the preservation of her right to a fair trial. Everybody appealed.

The EAT disagreed with the Tribunal's approach. It said that the Tribunal had been wrong to conclude that the interference with J's rights was "in accordance with the law".

The Tribunal had been wrong to use the analogy of a passer-by featured on CCTV foot-age. The EAT also said that the Tribunal could not properly say whether the tape advanced X's case without considering it alongside all of the other evidence in the case.

The EAT found that the pragmatic way to protect everybody's rights was for the tape to be admitted in evidence and considered, but in private by the Tribunal - as allowed by the Tribunal's rules of procedure. So that no members of the public or the press would be permitted at that part of the hearing, only the parties and their representatives.