EAT Practice and Procedure – Bias, Misconduct and Procedural Irregularity
A Cambodian whose first language was Khmer, who claimed that his dismissal from employment in Birmingham was unfair and racially discriminatory, asked in advance of a preliminary hearing due to consider whether his claims should be struck out to be given the services of an interpreter. No interpreter could be found. At the start of the hearing the Judge repeated this, and asked if the Claimant was happy to proceed. He indicated that he was. The ET heard the Claimant give evidence about the nature of his claim, on which he was cross-examined by counsel, before concluding in the light of that and the documents available to it that the claims had no reasonable prospect of success and should be struck out for that reason. On appeal it was argued that fairness (underscored by the overriding objective, Article 6 of the ECHR, natural justice and developed common law principles of fairness) required there to be a reasonable opportunity for the Claimant to advance his case and engage with the case against him, and that without having a Khmer interpreter this was denied him. It was held that in circumstances where he had a demonstrated facility with written language, had contact with no Khmer speaker since 2004, had worked with co-employees with whom he conversed in English, and had had to satisfy his employer when first engaged to work with children in a residential home that he had sufficient command of English to do so, it was not unfair of the Judge at the start of the hearing to refer to the absence of an interpreter and ask whether he was happy to proceed, as it was found he did. The Claimant said he was. In the particular circumstances of this case there had been no material unfairness nor procedural irregularity. The nature of the case was such that the judge was entitled to see it as one of those exceptional cases in which it was appropriate to strike out the claims before all the available evidence (such as it was) had fully been heard. Appeal dismissed.
Langstaff P J
[2015] UKEAT 0446 – 14 – 1611
Bailii
England and Wales
Employment
Updated: 06 January 2022; Ref: scu.554885