Employment Law Update - Unavailability of interpreter

Published: 18/12/2015

The Employment Appeal Tribunal (EAT) has decided that it was not unfair for an employment tribunal to proceed with a hearing in the absence of an interpreter.

Hak v St Christopher’s Fellowship, EAT

Facts

The claimant in the case was a Cambodian whose first language was Khmer. His claims for unfair dismissal and race discrimination were listed for a preliminary hearing to decide whether they should be struck out.

He requested the assistance of an interpreter in advance of the hearing but none were available. At the outset of the hearing, the claimant confirmed that he was happy to proceed without an interpreter. His claim was subsequently struck out and he appealed on the grounds that he had been denied a fair hearing without the assistance of an interpreter.

EAT Decision

The EAT dismissed the claimant’s appeal. He had been required to show sufficient command of spoken English in order to be appointed in his role and he had conversed with colleagues in English. The documentary evidence also demonstrated a reasonable command of written English.

In the circumstances of the case, the EAT was satisfied that there had been no material unfairness or procedural irregularity in proceeding without an interpreter.

Consequences

The judge was reluctant to give any prescriptive guidance, but suggested that it would normally be appropriate for a judge to give the claimant the choice of proceeding in the absence of an interpreter or waiting until one was available. However, if the claimant’s command of language is so poor that they are unable to give a sufficient account of their case, offering such a choice may be inappropriate.

Employers should bear in mind the risks of proceeding with a disciplinary hearing in circumstances where an employee’s command of English is poor. In this situation, it would probably be reasonable to allow the presence of a friend or family member to act as a translator for the employee.

The content of this article is for general information only. For further information on the unavailability of an interpreter, please contact a member of Birketts' employment team. Law covered as at December 2015.

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