In Hak v St Christopher’s Fellowship  UKEAT/0446/14/DA the EAT has declined to give specific guidance as to when a court or tribunal should provide an interpreter, instead finding that the matter should be determined on a case by case basis.
As a rule of thumb, however, tribunals should “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.”
Chris Milsom acted for the successful Respondent before a three-member tribunal led by Langstaff P.
The Claimant was employed as a night worker at a children’s home before being dismissed purportedly for misconduct. He brought a claim of race discrimination and/or protected disclosure detriment in respect of his dismissal.
The Respondent applied to strike out the claims. In response, the Claimant requested an interpreter to attend the hearing. The Claimant is Cambodian; his native language is Khmer.
Approximately two days before the strike out hearing, the Claimant was notified by letter that a Khmer interpreter had not been obtained apparently due to short notice. The letter advised the Claimant to attend the hearing with a friend, but also stated that the employment judge would want to be satisfied the Claimant could understand and participate fully in the hearing. It made no mention of the possibility of adjournment.
The Claimant attended the hearing and, after giving evidence, his claims were struck out. The employment judge found that the protected disclosure claim was not contained in the claim form; the race discrimination claim was the subject of largely agreed facts on which the Claimant enjoyed no reasonable prospect of success.
The Claimant appealed on two grounds, the first of which was procedural irregularity. He said the hearing should have been adjourned so that an interpreter could be found. His affidavit before the EAT stated that he had requested an interpreter at the start of the hearing (but had not asked for an adjournment because he knew neither what an adjournment was nor that he had a right to apply for it). He also stated that he had struggled to understand much of the hearing, particularly legal terms.
Much of the Claimant’s affidavit was disputed by the employment judge’s comments in reply. Accordingly, oral evidence from three witnesses was heard before the EAT. The Claimant was provided a Khmer interpreter for the EAT hearing.
The EAT made findings of fact that in the strike out hearing the Claimant had been offered the choice of whether to proceed with the hearing or not and that the Claimant would have understood that “not proceeding” entailed having the hearing heard at a later date. He had opted to proceed.
The Claimant did experience difficulties conducting the hearing, but these were principally difficulties he experienced qua litigant in person as opposed to qua litigant without an interpreter. This was demonstrated in part by the fact that more often the Claimant was asked to clarify his answers than he asked others to clarify their questions.
The Claimant had lived in the United Kingdom for 17 years and had had almost exclusive contact with English speakers for 10 years. His employment with the Respondent had required a sufficient level of English to meet the role’s demands, including reporting in respect of children’s care.
The EAT considered three types of litigant whose first language is not English or Welsh.
The first is someone whose language abilities are so poor that “through a lack of knowledge of the language a litigant simply cannot give the account which they would wish to give”. In such a case, there is a “powerful argument” that the tribunal should take all reasonable steps to secure an interpreter, including funding one. Offering the litigant the choice of whether they wish to proceed would not be sufficient, largely because they would not understand the choice being offered. 
The second is someone who has “a well-demonstrated ability to speak, write or read English (as the case may be)”, such that an interpreter is unnecessary. In that case, a tribunal not just could but should reject an application for an interpreter. A tribunal should “think long and hard” before reaching this conclusion. 
The third is someone with “some command of the language rather than lacking it altogether”. The claimant in this case, like many others, fell within this category.
The EAT found that neither natural justice nor art. 6 ECHR provides such a person an absolute right to an interpreter. It affords the right to “a reasonable opportunity” to present a case in court, following AB v Slovakia  (Application 41784/98, para 55). What that reasonable opportunity would look like is not capable of a single answer and cannot be the subject of specific guidance: “All will depend upon the court’s assessment, in the light of the available evidence, of the standard of understanding and expression … carefully bearing in mind that easy understanding of the written word may not be reflective of an easy ability with the spoken word.”  It is a matter for tribunal discretion.
Despite declining to give binding guidance, the EAT did offer what it called a useful test: “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.” 
In the present case, it was reasonable to give the Claimant a choice as to whether to proceed with the hearing or not. That choice was explained such that the Claimant understood it sufficiently. The Claimant’s continuing discomfort in the hearing arose from his difficulty making out a legal claim on his facts, not from his difficulty understanding the facts on which he relied.
A further feature the EAT considered was that the Claimant had consented to proceed without an interpreter. The lay members emphasised that had the employment judge then adjourned the hearing that would have undermined the Claimant’s autonomy. Parallels were approvingly drawn with capacity cases, in which, provided the litigant has the capacity to understand the proceedings, it is not the court’s role to second guess the litigant’s decisions.
The second ground of appeal, that the employment tribunal had wrongly struck out the claims in any event, also failed.