This is the question that concerned President of the Employment Appeal Tribunal Mr Justice Langstaff in the case of Hak v St Christopher’s Fellowship.
Mr Hak worked as a night wake worker at a children’s home in Newton Road, Birmingham. He is Cambodian and his native language is Khmer. He has lived in the UK for the last 17 years. In April 2013 he was dismissed, purportedly for misconduct. However, he maintained that it was on racial grounds – because he was not Afro-Caribbean – and/or as the result of making public interest disclosures.
In his ET1 he said that he had texted a co-worker and asked her out for dinner. She declined and he sent a number of texts to her thereafter. In response she filed a formal complaint of sexual harassment. On the day of the hearing of the complaint Mr Hak had filed a report in which he had made a number of allegations about other co-workers, specifically black Jamaican employees. He said that the complainant was being “lured…toward a male worker” and that “something is going to turn the Newton Road into the United Kingdom of Jamaicans as soon as any white female worker there will need to have sexual affairs with a Jamaican male worker”. He also said that she was “quite vulnerable because she is on public transport which is easily monitored by this ethnic group in Sandwell areas” and that “she would feel “very unsafe while she is still working and living in the Sandwell area which is full of these ethnic people”.
He was called to a disciplinary hearing and was dismissed for what he reported were allegations of “racism…and serious unsubstantiated allegations (my views)”. His appeal against dismissal was unsuccessful.
His ET1 set out his complaint in 55 paragraphs over 11 pages of closely spaced written English. The matter was listed for a preliminary hearing on 9 October 2013 and the Respondent indicated that it intended to make an application to strike out the claim. Mr Hak wrote to the Tribunal and made a number of observations including:
English is not my first language and I have not been able to afford the benefit of legal advice, and therefore, I would welcome any suggestions the Employment Tribunal may have in advising how I may set out my case in a clearer format for the other side and the Tribunal to understand;
In response the Tribunal asked him whether he required an interpreter. However, in another letter, the Tribunal said that it was a private hearing and only the parties could attend. Mr Hak asked for an interpreter. However, one speaking Khmer could not be found and the hearing on 9 October went ahead. Employment Judge Kearsley observed:
Whilst the Claimant had demonstrated a good command of written English he indicated that he would struggle with articulating legal arguments in other than his first language. I felt that although I could have made orders today to prepare for a final hearing it would be unfair to the Claimant to face the risk of his claims being dismissed without his having the benefit of an interpreter.
The matter proceeded to a further preliminary hearting on 13 November. Judge Gilroy QC noted that Mr Hak had made a number of derogatory remarks about black Jamaicans, using wholly inappropriate racially stereotypical phrases and descriptions to speak of other employees and his discrimination claim was “wholly devoid of merit”. At the same time the employer had valid grounds to dismiss him. However, this hearing also took place without an interpreter attending and Mr Hak said that he “was unable as a result fully to understand the proceedings or sufficiently to present his case”. He appealed.
It was submitted on his behalf that the Tribunal should not have proceeded without an interpreter in attendance, in order to ensure equality of arms and, in particular, to comply with Article 6 of the European Convention on Human Rights (right to a fair hearing).
On the balance of the available evidence it appeared that Mr Hak had said that he was happy to proceed although he may not have understood the meaning of the word “adjourn”. the Judge had made a note that he was “okay re: language”. There was no basis on which the Judge could properly have concluded that Mr Hak wanted to put off the hearing to a later date.
Mr Justice Langstaff accepted the Respondent’s submission that Mr Hak found the legal process difficult, but in much the same way as other litigants unfamiliar with legal proceedings do, rather than as a result of language problems. It also emerged that he had not been in contact with other Khmer speakers since 2004. He had to have a certain level of competence in English to be able to do his job.
It was noted that if a party wished to have an interpreter, there is no reason why a Tribunal should not facilitate the request as best it can. However, that does not mean that an interpreter must be provided at public expense or that a hearing cannot proceed without an interpreter being present.
In some cases it is clear that knowledge of the applicable language is so poor tat a Tribunal must take all reasonable steps, including funding, to secure the services of an interpreter.. On the other hand, if a litigant has a well-demonstrated ability to speak, write or read English (as the case may be) then it is open to a Tribunal to conclude that an interpreter is unnecessary.
If the scenario is between the two then the Tribunal must make an assessment of need in the context of achieving justice. However, Mr Justice Langstaff declined an invitation to give general guidance:
We are reluctant to give any prescriptive guidance, since individual circumstances vary so much, as do the particular demands of different cases. Much can in our view be left to the good sense of the Judge, who is in the best position to assess these. That said, a useful test for a Tribunal to consider while making such an assessment in circumstances in which it is called for is to ask whether the litigant’s command of language is sufficient to enable him to give the best account to the Tribunal which he would wish to give relating to the matters in dispute.
On this basis Mr Mak’s appeal failed. There were concerns about procedure but not enough to establish material procedural irregularity. On the second ground, the claim had no reasonable prospect of success with the consequence that the appeal was dismissed.