Hak v St Christopher’s Fellowship

An Employment Tribunal should facilitate an interpreter where reasonably possible, but a party has no absolute right to an interpreter at public expense. The Tribunal must assess whether the litigant has a reasonable opportunity to present the case and whether the choice to proceed without an interpreter is real and informed. The assessment is fact-sensitive and must remain under review throughout the hearing. A claim may be struck out for having no reasonable prospect of success only in exceptional circumstances, applying a high threshold and avoiding determination of genuinely disputed central facts. The fact that the claim concerns discrimination does not prevent strike-out where the pleaded and accepted facts cannot establish a viable claim.

The claimant, a Cambodian former night worker, brought claims of race discrimination and unfair dismissal after being dismissed for misconduct involving allegedly racist and unsubstantiated allegations about colleagues. At a preliminary hearing, no Khmer interpreter was available. The Employment Tribunal asked whether he was happy to proceed, heard him give evidence, and struck out both claims as having no reasonable prospect of success.

The claimant appealed, alleging procedural unfairness arising from the absence of an interpreter and error in applying the strike-out jurisdiction. The central issues were whether the hearing gave him a reasonable opportunity to participate and whether the Tribunal was entitled to determine that the claims had no reasonable prospect of success without hearing all the evidence.

1. Interpreter and fairness. The appeal tribunal held that an interpreter should generally be facilitated where possible, but Article 6 and the principles of natural justice do not create an absolute right to an interpreter. Where language ability is intermediate, the Tribunal must assess all the circumstances and ask whether the litigant’s command of language is sufficient to give the best account of the matters in dispute which he would wish to give. Written fluency may not reflect oral fluency, so the assessment must be careful and fact-sensitive.
2. The Tribunal may offer a choice between proceeding and waiting for an interpreter, provided the litigant sufficiently understands the choice. The duty to ensure fairness is continuing, and the Tribunal must remain prepared to review its decision as the hearing develops. Here, the claimant’s substantial written English, long residence and employment in England, workplace use of English, and understanding of the choice meant that proceeding without an interpreter caused no material unfairness or procedural irregularity.
3. Strike-out. Under Employment Tribunal Rules 2013, rule 37, “no reasonable prospect of success” imposes a high threshold. The Tribunal must consider the available material carefully and must not resolve disputed central facts merely by preferring the respondent’s assertions. In exceptional cases, however, a claim may be struck out before all evidence is heard.
4. The race discrimination allegations identified no viable comparator or evidential basis for an inference of less favourable treatment. The unfair dismissal claim was also hopeless on the accepted facts. Although the employer bore the burden of proving the actual reason for dismissal under section 98 of the Employment Rights Act 1996, the Tribunal was entitled, in this unusual case, to conclude that the claim had no reasonable prospect of success.
5. The appeal was dismissed. The appeal tribunal nevertheless criticised the practice of cross-examining a claimant to discover what his pleaded case was, particularly where the respondent’s decision-maker was not called, and expressed the hope that such a practice would not be followed without compelling reason.

• Employment Tribunal, Birmingham: Claims for race discrimination and unfair dismissal struck out for having no reasonable prospect of success.
• Employment Appeal Tribunal: Appeal dismissed; no material procedural irregularity or error of law was established.