United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR COLIN BARR Group HR Manager OCS Cleaning South Ltd Frederick House Brewer Street Maidstone Kent ME14 1RY
For the Respondent	MISS JOHANNA BOYD (Of Counsel) Instructed by: Ms H Patel Law For All Southall Law Shop 37 Hunt Road Southall Middlesex UB2 4QB


 


JUDGE D PUGSLEY

1. This is an appeal which comes before us as a full hearing, there having been an ex parte hearing, as an appeal against the decision of the Employment Tribunal sitting in London (North) of a decision sent to the parties on 17^th May. The Applicants before the Tribunal are husband and wife who have worked for the Respondent company OCS Cleaning South Ltd on cleaning duties at Heathrow Airport. According to them on 1^st October they were sent home. They were told by the security officer at the airport that they could not carry on with the work because they had no security passes. They apparently reported that to the Respondents manager, Mr Lynam, and were told to go home until the matter was sorted out.
2. According to the Applicants they did not hear from Mr Lynam for some time and did not return to work because they believed they required security passes and the Respondent had not organised such passes for them. The Respondent's case was that they had in fact explained to the Applicants they did not need security passes and that the Applicants were therefore absent from work without authority.
3. At paragraph 5 of its reasons, the Tribunal found this

"that whether identity passes or not are required both Applicants honestly believed that they required identity cards before they could work landside of the airport. My Lynam, in our view, having regard to the fact that neither the Applicants can speak English at all well and were relying on the service of an interpreter failed to explain what the position was".

The Applicants were effectively vindicated, save that was no finding in respect of Mr Dhillon because of his age on the issue of unfair dismissal and they held that Mrs Dhillon had been unfairly dismissed.

4. The decision was sent to the parties on 17^th May. On 19^th May the Respondent asked for a review of the decision on the grounds there had been a breach of natural justice in that the Respondents had not been notified in advance that an interpreter was to be used. They did not know the interpreter was in fact the daughter-in-law of the Applicant. That being the case, the interpreter could not be said to be truly independent. The interpreter had herself given evidence, and that evidence, and her interpretation could assume the appearance of bias. Therefore it was contended that a fair hearing had not taken place.
5. The Chairman rejected that application for a review on 30^th May in these terms.

"I know of no rule of natural justice which requires the parties to indicate that they intend to give evidence through an interpreter to the opposing party before the trial commences. It is true that the interpreter was the daughter-in-law of the Applicants but the facts in the case were uncontroversial and the main thrust of the case was the legal interpretation which the Tribunal ought to put on the fasts of the case, i.e. did the Respondents dismiss the Applicants or, if the Applicants resigned, did they resign in circumstances which amounted to a fundamental breach of contract. I could detect no bias in the interpreter who seemed to me to be interpreting clearly and accurately. It is true that later she gave short evidence as to what had happened when she had interpreted for her parents-in-law at an interview with the Respondents' representative, but this did not seem to me to reflect the integrity of the interpreter.

Further, if objection was going to be taken either to the use of an interpreter or to the use of that particular interpreter as being a close relation of the Applicants, then this should have been done at the hearing when the Tribunal could have ruled on the situation. It is, in my view, now too late for the Respondents to object and, accordingly, for these two reasons I refuse to order a review of this matter."

6. In his Notice of Appeal, Mr Barr, who is the Human Resources Manager of the company, which has a large number of employees, essentially raised that issue, that it was wrong for the daughter-in-law to act as an interpreter. Under Sir Christopher Bellamy QC, sitting together with two members, Mrs Matthias and Mr Sanderson OBE, the Employment Appeal Tribunal decided at a preliminary hearing that there was a reasonably arguable error of law in this case. The Employment Appeal Tribunal noted that the ability of the Applicants to speak English was at many respects at the heart of this case. The Employment Appeal Tribunal in paragraph 5 of its findings relied on the fact that the Applicants could not speak English at all well and were relying on the services of an interpreter. They came to the conclusion that in those circumstances Mr Lynam had failed to explain sufficiently what the position was. The Employment Appeal Tribunal noted in passing, that it was rather difficult to see how the Tribunal Chairman could come to a conclusion as regards the quality of the interpretation.
7. Before us we have had the benefit of hearing Mr Barr again. We hope what we say does not sound patronising but clearly Mr Barr is a gentleman of considerable experience. It is relevant that he appears, in very round terms, regularly at Tribunals appearing in perhaps something like a hundred cases a year. So we are dealing with a person who may not have a professional legal qualification but probably has other far more important qualifications in other areas and is, if we may say so, obviously a person who has risen to a position of distinction within the company he represents and has well and truly put his case very forcefully here. The Respondents have been represented by Miss Boyd.
8. We accept the general proposition that from time to time Tribunals and Courts should look at their procedure and just not assume that what is current practice is necessarily fair. The HRA 1998 has forced many formula and assumptions to be challenged. We accept the point that Miss Boyd has made that there are difficulties over this. Mr Barr is far too realistic and, if we may say so, worldly-wise to think that one can draw up absolute prohibitions. We hope we are not doing an injustice to his case to say that he concentrates on the interpreter being a relative but he does not think that it would be right to bar all friends. Mr Barr recognises that there may be problems if the bond is a financial one rather than one of kinship or friendship
9. His real grievance is that the Appellants had no prior knowledge of the use of an interpreter, and as far as they were concerned the Applicant could speak some English. If they knew an interpreter was to be used, at least the employer could have had an interpreter present. Further it is said that the interpreter was asked certain questions.
10. This is a fair point to make and we have considered it. In short our view is this. We do not think this is a case to lay down particular guidelines of a far reaching nature because we accept the incident on which this happened to be confined to its own facts. We accept what we have been told by Miss Boyd. Firstly that this witness, the interpreter, was not going to be called as a witness, in the sense there was not a witness statement. Mr Barr has very openly conceded he has a limited memory of what happened and he said, rather refreshingly, he tends to always ask witnesses questions but he cannot recall asking this witness a question.
11. It seemed what happened is that she was asked two questions of thereabout by the Chairman himself and those two questions were along the lines "Did they feel they couldn't return to the job because of the identification passes?", the answer "Yes". "Did they enjoy the job?". "Yes, even when they were ill". That comes from the instructing solicitor's note that Miss Boyd has.
12. There is nothing in the decision that anyone is able to point to as a major finding a fact relating to that evidence and we think in the context of this case there was no injustice in the way this occurred. There are always going to be difficulties with interpreters. With the greatest respect to the members of the preliminary Tribunal and here, if we may say so, who relies not on forensic experience alone but experience of one of the members of the Tribunal who had extensive experience of those employments where substantial and significant proportion of employee were not English speakers, we do think that someone is able to form a view on the reliability of someone's evidence albeit that evidence is given through an interpreter. We consider a Tribunal can, in certain cases, detect bias in an interpreter.
13. We consider, that although we are not saying there is an absolute legal duty, the point that Mr Barr has raised is an important one and we say that there may be cases, and indeed Miss Boyd does not challenge this, where it is good practice for notice to be given that an interpreter is to be used. Secondly, it may be appropriate either at the Directions Hearing, or possibly at an earlier stage, for people who are going to use an interpreter to give an indication of that so the issue is flagged up for the Respondent. However, we do not think on the particular facts of this case, bearing in mind that what happened was very much at the initiative of the Chairman in asking a couple of questions, there can be said to be a breach of natural justice in this case.
14. We can readily understand how parties may wish to have a person who can speak their own first language at a formal hearing such as a Court or Tribunal hearing when they can cope at work in their limited understanding of English. We do not think we should lay down rigid categorisations. On the facts of this particular case, having regard to how that evidence emerged, namely as a result of questions from the Chairman confined to two very narrow questions it would seem, we do not think there was a breach of natural justice. Nor do we think the use of an interpreter without advance warning was a breach of the right to a fair trial.
15. This is an area that can cause certain rather agonising decisions to be made in other jurisdictions. The law seeks to protect, in particular, those least capable of protecting themselves. In some cases, witnesses are, as a result of natural infirmity or illness, unable to give a clear and audible account of what happened. They are able to communicate with a carer but unfortunately there is no external validation by any outside body, nor can there be, of what the witness is saying. One does not need much imagination to see how that can lead to difficulties where a person who is disabled claims to have been abused. We consider the ultimate question is whether a fair trial is possible.
16. For the reasons we have given, we consider that there was no procedural defect which impugned the fairness of the trial. We, therefore, dismiss the appeal. We make no order for costs save for legal aid taxation. We hope the matter can be resolved in the way suggested in the final paragraph of the decision.