EMPLOYMENT APPEAL TRIBUNAL FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8AE

Transcription

1 Appeal No. EMPLOYMENT APPEAL TRIBUNAL FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8AE At the Tribunal on 19 October 2015 Judgment handed down on 16 November 2015 Before THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT) MRS M McARTHUR BA FCIPD PROFESSOR K C MOHANTY JP MR T V HAK APPELLANT ST CHRISTOPHER S FELLOWSHIP RESPONDENT JUDGMENT Copyright 2015

2 APPEARANCES For the Appellant MRS HELEN BARNEY (of Counsel) Instructed by: Mr T V Hak For the Respondent MR CHRISTOPHER MILSOM (of Counsel) Instructed by: Trowers & Hamlins LLP 3 Bunhill Row London EC1Y 8YZ

3 SUMMARY 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 crossexamined 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.

4 THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT) 1. This appeal from a judgment of an Employment Tribunal at Birmingham (Employment Judge Gilroy QC) striking out the Claimant s claims, for reasons later expressed in writing on 7 th March 2014, concerns the extent to which the overriding objective of the Employment Tribunal rules, Article 6 of the European Convention of Human Rights and Fundamental Freedoms, and the principle of fairness and equality of arms relate to the absence of a requested interpreter. The Underlying Facts 2. The Claimant is Cambodian. His native language is Khmer. He has lived in the UK now for some 17 years. Latterly, he was employed as a night wake worker at a children s home at Newton Road in Birmingham. He was dismissed from that post, with effect from 19 th April 2013, after just over a year s service. This was purportedly for misconduct, but he did not accept that that was the real reason. He contended it was discriminatory, on the ground of race, because he was not Afro-Caribbean; and/or that it was in response to his making disclosures in the public interest. 3. In his ET1, complaining about discrimination on the grounds of race against him and unfair dismissal, he made a lengthy statement. In it he recorded, amongst other matters, the fact that he had texted a co-employee to ask her out for dinner, to which she had responded politely but negatively. Thereafter he had sent her a number of texts. She had then filed a formal complaint against him, accusing him of sexually harassing her. On the same day that he was told that there would be a meeting to consider her formal complaint against him, he submitted a formal whistle-blowing report to HR to protest my innocence and to inform them of what was going on at Newton Road. The report expressed concern for the co-employee: it -1-

5 suggested that she was intimidated by fellow employees, was being lured toward a male worker that something is going to turn the Newton Road into the United Kingdom of Jamaicans soon as any white female worker there will need to have sexual affairs with a Jamaican male worker ; blamed a group of ethnic minority Jamaicans for bullying and intimidation at Newton Road; speculated that the female co-worker was being sexually harassed by one of the group in particular and described her as quite vulnerable because she is on public transport which is easily monitored by this ethnic group in Sandwell areas (sic) and that, if the co-worker complained, some of the black Jamaican workers might be suspended or sacked and she would feel very unsafe while she is still working and living in the Sandwell area which is full of these ethnic people. He alleged that the co-worker had been physically held back against her will from leaving a home at North Street, the suggestion being that this was the doing of black Jamaican co-workers. 4. The Respondent called the Claimant to a disciplinary hearing on two charges relating to what he had stated in his report. In paragraph 44 of his statement the Claimant described these as racism (due to some languages I used in my report) and serious unsubstantiated allegations (my views) in relation to factual incidents related in my report. These charges were upheld, and he was dismissed. 5. He appealed. His appeal was dismissed. 6. In June 2013 he submitted his claim form, which set out his complaint in 11 pages of closely spaced written English, divided into 55 paragraphs, and annexing the submissions he had made to the disciplinary hearing and to the appeal panel the latter consisting of two editions over 9 pages in length. After an ET3 had been submitted, the Claimant submitted a further document headed Basic Grounds of Race Discrimination Claim. This began with the -2-

6 words I should not have been dismissed if there was no race discrimination against me at Newton Road. 7. It follows that the Claimant s case, as made in his originating application, was that he had been dismissed ostensibly because the charges had been found proved against him, but the real reason was race discrimination; and his ET1 implied that a further or alternative reason was his making a report which drew attention to irregularities, both financial and by reason of the treatment of the female white co-worker of which he had spoken. 8. A preliminary hearing was due to be heard on 9 th October On 19 th September 2013 the Claimant wrote to the Tribunal to ask if it were possible for him to bring a friend to it. 9. The Respondent then applied to strike out the claims at the hearing. In further response to that, the Claimant wrote to the Employment Tribunal on 30 th September 2013 making five points one of which read:- English is not my first language and I have not been able to afford the benefit of legal advice, and therefore, I would welcome any suggestions the Employment Tribunal may have in advising how I may set out my case in a clearer format for the other side and the Tribunal to understand;. 10. On 2 nd October 2014, in a prompt reply to that query, Employment Judge Dimbylow asked if the Claimant required an interpreter. So far as we can see, that was the first suggestion that an interpreter might be needed. 11. However, on the same day, the Tribunal wrote in another letter to the Claimant to say that the hearing would be a private hearing and only the parties involved in the case could attend unless the Respondent agreed on the day of the hearing. This was a surprising letter, given that -3-

7 the Respondent had applied to strike out the claim and the rules provide that though a preliminary hearing should be conducted in private (Rule 56) this does not apply where the hearing is to determine any preliminary issue or to consider whether a claim or response should be struck out under Rule 37 (Rules 56 and 53(1)(b)(c)). However, no point turns on it, though it may well have provoked the Claimant into requesting an interpreter by return of post. There is a record that a person at the Tribunal spoke to the Claimant, and noted that he could conversate well enough to take directions, so it was agreed that he would attend the hearing and that once a full hearing was organised the Tribunal could endeavour to obtain a Cambodian interpreter. 12. On 9 th October the matter came before before Employment Judge Kearsley. He noted that the Claimant had asked for an interpreter but that it had not proved possible to provide one familiar with Khmer at short notice. He observed: Whilst the Claimant had demonstrated a good command of written English he indicated that he would struggle with articulating legal arguments in other than his first language. I felt that although I could have made orders today to prepare for a final hearing it would be unfair to the Claimant to face the risk of his claims being dismissed without his having the benefit of an interpreter. He clarified the claims and established that in essence the Claimant asserted that those of Afro-Caribbean origin were more favourably treated than those of any other national origin, and that the decision to dismiss him had been orchestrated on racial grounds by a Ms Annette Richards. The Claimant relied upon the written complaint in which he alleged criminal activity as being a protected qualifying disclosure and argues that his subsequent dismissal was automatically unfair but in this latter respect the Judge noted that the Respondent reserved its position on whether the claim was contained in the claim form and whether the complaints of discrimination other than that in respect of dismissal were brought in time. -4-

8 The Tribunal Decision 13. On 13 th November 2013 the preliminary hearing was held before Employment Judge Gilroy QC. He held that (1) no claim for automatic unfair dismissal by reason of having made protected disclosures had been contained in the claim form; (2) the Claimant did not dispute that he had submitted various documents to his employer in which he referred to his fellow employees who were of African/Caribbean origin as being the United Kingdom of Jamaicans, that he used the term this idiot BJ meaning idiot black Jamaican had made openly derogatory remarks about black Jamaicans, and on the basis of undisputed evidence used wholly inappropriate, racially stereotypical phrases and descriptions to speak of other employees within his work place; (3) in the light of that the discrimination claim was wholly devoid of merit. 14. At paragraphs 14 and 15 of his Reasons, the Judge considered that on evidence which was undisputed there was material before the employer at the disciplinary hearings to substantiate the charges: and he noted further that in respect of the second ground of misconduct (making unfounded allegations) the Claimant was repeatedly asked at those hearings to provide evidence to support his claims but chose not to do so. Thus (paragraph 16): As far as the unfair dismissal claim is concerned however, I cannot see how any Employment Tribunal at a full hearing could conclude in relation to Count 1 other than that the Respondent had a reasonable belief that the Claimant had committed serious misconduct, that that belief was based upon reasonable grounds and that the Respondent s conclusion was reached after a reasonable disciplinary investigation. Indeed, it is hard to see what the Respondent needed to investigate given the Claimant s admission as to what he had said. As to Count 2 in relation to the unfair dismissal allegation, I fail to see how any Employment Tribunal reasonably directing itself as to the appropriate law could conclude other than that dismissal was not unfair within the meaning of Section 98(4) of the Employment Rights Act The Judge thought no central facts were in dispute, and that there was no crucial core of disputed facts. -5-

9 16. The appeal against this decision is on two grounds. The first is that there was a material procedural irregularity since there was no interpreter, and the Claimant was unable as a result fully to understand the proceedings or sufficiently to present his case; the second was that the Tribunal erred in exercising its discretion so as to strike out the claims. 17. Ms Barney, in a well-structured and carefully considered argument, submitted on behalf of the Claimant that it was incumbent upon the Judge to have adjourned the hearing to enable a Khmer interpreter to be found. The overriding objective contained in Rule 2 of the Rules of Procedure 2013 required an Employment Tribunal to deal with cases fairly and justly, which included ensuring that the parties were on an equal footing; Article 6 of the Convention entitled the Claimant to a fair and public hearing, and so far as criminal offences were concerned provided as a minimum the right to be informed in a language which the defendant understood and in detail of the nature and cause of the accusation against him. It was recognised in AB v Slovakia, a decision of the European Court of Human Rights (Application 41784/98) made final on 4 th June 2003, that the key principle governing the application of Article 6 was fairness, and at paragraph 55 of the judgment that: The principle of equality of arms one of the elements of the broader concept of fair trial requires that each party should be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis à vis his or her opponent (see Dombo Beher B.V.d. v Netherlands (judgment 27 October 1993 Series A no. 274, p.19, paragraph 33); Ankernl v Switzerland (judgment of 23 October 1996), Reports of Judgments and Decisions 1996 V, pp to 68 para. 38). In the circumstances of AB itself a hearing had proceeded in the absence of the applicant after the court had failed to make a formal decision on her request for the appointment of a lawyer to act for her. She had been deprived of the opportunity to present her case under conditions of equality vis à vis the defendant. -6-

10 18. Ms Barney submitted that fairness is not restricted to having representation in one s absence: it includes having an ability to hear and understand proceedings and to present a case. In Fuld [1965] 2 All ER 653, Scarman J at 65 E-H described the principles of natural justice relevant to that case as including: that every litigant should have the right to be present, to hear the evidence, to challenge the evidence, to call evidence himself, and to present his case to the court while hearing and, if necessary, challenging his opponents case. But there is this difference between civil litigation and a criminal case: in a criminal case life or liberty are at stake, and willy-nilly the accused is brought before the court and is faced with a procedure which can have consequences which I have mentioned. Civil litigation is always a matter for the parties they need not fight. If they do fight, the court must see that they have their rights, including the rights of natural justice, but it is not for the courts to impose those rights upon the parties who do not seek to exercise them. It is for the court only to be quite sure that the parties have every opportunity of dealing with the case against them, of presenting and developing their own case. 19. She submitted it was neither just nor fair that individuals should be engaged in a hearing without full understanding or an ability adequately to present their case by reason of difficulty with language. Against an English speaker such a party would not be on an equal footing. To inadvertently deny an individual the right to a fair trial by reason of his lack of comprehension of the English language was incompatible with Article 6, and with general principles of fairness. This was implicitly recognised in guidance provided to court users set out on the Justice website. This included a promise that HMCTS would provide an interpreter if that is the only way a litigant can take part in a hearing. In a somewhat unfortunate mix of the first and third person, it identified relevant circumstances being as: where you 1. cannot speak or understand the language of the court well enough to take part in the hearing 2. cannot get public funding 3. cannot afford to privately fund an interpreter, and has no family member, or friend, who can attend to interpret for them who is acceptable to the court 4. or where the Judge directs that an interpreter must be booked as the case cannot proceed without HMCTS funding one. -7-

11 But then, and somewhat confusingly given what had just gone before especially since it might be thought it was guidance primarily addressed to non-native speakers of English, I note that it added: If the case is privately funded you must supply your own interpreters. 20. Ms Barney argued that the Claimant had simply sought an interpreter; that Employment Judge Kearsley had concluded one was necessary and that it was not until 8 th November a Friday, before the hearing was due to start the following Wednesday that a letter was written to the Claimant telling him that no Khmer interpreter could be found to assist. This was unlikely to have arrived at the Claimant s address before the Monday immediately preceding the hearing. 21. In oral argument, she submitted that at three stages the Tribunal was obliged to take steps, beyond those it did, to ensure fairness and equality of arms in respect of the Claimant s language difficulties. The first stage was when the notification was sent on 8 th November. The notification read: Unfortunately we are unable to find a Khmer interpreter. In the circumstances the Claimant should bring his friend who can assist him at the hearing and ensure that he understands the proceedings. However, the Employment Judge conducting the hearing will want to be satisfied that the Claimant can understand and participate fully in the hearing without the benefit of an interpreter. What this letter did not say was that it was open to the Claimant to ask for a hearing on a later date on which an interpreter might be available. 22. The second stage was at the outset of the hearing. As to this the Claimant said on affidavit that he had not been offered an adjournment of the hearing. -8-

12 23. The third stage was that, having decided to go ahead, the Employment Judge should have kept matters under review, have seen that the Claimant plainly was struggling, and intervened to adjourn matters then. 24. The Claimant filed an affidavit setting out the facts on which he relied to establish procedural irregularity, in accordance with the EAT Practice Direction 2013, paragraph 13. He said that the Judge at the second case management hearing had asked him to set out the nature of his case and the evidence which he had to support it: I did not understand these questions and what was required of me. I confirmed this to the Judge and as such requested an interpreter but was advised that one could not be found. I was therefore denied an interpreter at the hearing and thus was not on equal footing with the Respondent in accordance with the overriding objective. 25. He said he had struggled throughout the hearing due to my poor spoken English and my poor understanding of the English being spoken to me. In particular, he did not understand legal terms such as protected disclosure and other legal phrases which the Employment Judge had used. As a result of this lack of understanding he said that he had had to ask the Employment Judge and the Respondent s barrister to repeat questions, but he still did not understand a lot of the hearing. He had not asked for an adjournment because he was unaware that he had a right to request it and in any event did not understand the meaning of the term adjournment. 26. By contrast, the Employment Judge in commenting upon the affidavit of the Claimant as requested to do in accordance with the Practice Direction said that he spent some time at the beginning of the hearing discussing with the Claimant whether he would be able to conduct the hearing in the absence of an interpreter and was quite satisfied at the conclusion of the discussion that he would be able to do so. He added: -9-

13 Notwithstanding his pronounced accent he gave lucid and considered responses to my questions. At no stage did he suggest that he did not understand what he was being asked. I was careful to ask him whether he understood what he was being asked. He had no difficulty in answering my questions. 27. He said that under no circumstances was the Claimant put under pressure to indicate that he should proceed. He added that it was correct to say that the hearing did not run smoothly in the sense that the Claimant does have poor spoken English. He had, however, simplified the language of the questions put to the Claimant both by himself and by Counsel for the Respondent. He said that he had explained to the Appellant that if he felt that he was under some difficulty because of the lack of an interpreter the case could be adjourned to a future date, and had explained to him what an adjournment was. 28. In allowing the appeal to proceed to a full hearing HHJ Richardson considered that the extent of the Claimant s difficulty could only be resolved at a full hearing where the Claimant was available for cross-examination, and observed that there was room for argument and perhaps a need for guidance as to the duties of an Employment Tribunal in circumstances where it had considered an interpreter to be necessary and then failed to provide one. Was it sufficient to offer an adjournment and proceed if the offer were refused? What test should a Tribunal apply in deciding whether to proceed in the case of a person whose first language was not English and who appeared to be having some difficulty? He ordered that a Khmer interpreter be provided for the hearing before us, and one duly was. Evidence and Conclusions of Fact 29. The deponents of three affidavits were called before us: Mrs Marlene Taylor, a friend of the Claimant who had accompanied him to the hearing, and the Claimant on his behalf; and a Ms Lynda Morgan, HR Manager, who also had been at the hearing, for the Respondent. -10-

14 30. We took account of the extent to which the documents prepared by the Claimant on his own behalf displayed a facility with the English language. 31. The Claimant and Ms Morgan, in common with the Judge, agreed that at the outset of the hearing the Judge had raised the absence of an interpreter, and then asked the Claimant if he was happy to proceed. Mrs Taylor cannot recall whether this occurred or not. We conclude it did: there is no evidence to the contrary. Though the Claimant may not have understood the word adjourn (he says he did not) he makes no such claim about the words happy to proceed. The Claimant said that he was. 32. Further, the Judge made a specific note that the Claimant was okay re: language, and the Respondent s solicitor, though not called, produced a handwritten note which began with a note of the Claimant saying that he was happy to proceed. Though on the basis of the note the discussion might not have taken long we consider that it was more than simply a passing question. Although the solicitor s notes set out timings which give little space for any extended discussion, this does not coincide with the Judge s recollection that there was a relatively extensive discussion, and Mrs Morgan, whom we thought to be reliable on this point, recalled that it may have been 5 6 minutes. The matter is one of degree, and impression on the evidence: and we have concluded that it was not a detailed discussion for as long as the Judge recalls, but on the other hand it was more than a simple question and answer. It provided a real choice to the Claimant, and a proper opportunity for him to say whether he was happy, or not, to proceed in the context that an interpreter was not present. 33. The Claimant says to us that he felt he had no choice but to agree to proceed: that in effect he had been offered Hobson s Choice. We find that he did not express this feeling at the -11-

15 time, and the Judge had no basis on which he could properly have concluded that the Claimant wished to put the hearing off to a later date. 34. We accept that if the Claimant had been asked if he wished to adjourn he may well have not understood what that meant: but in these circumstances, being asked if he was happy to proceed invited either a positive or negative response, whatever the Claimant felt, and he chose the former. We accept Mrs Morgan s recollection that as part of the discussion, short though it was, the Judge mentioned the alternative of having the matter heard later. The Claimant was capable of understanding that, and could not have understood that the consequence of saying he was unhappy would be that the case simply would never go ahead. 35. We conclude that the Claimant knew in general, and factual, terms what he was complaining about, but did not fully appreciate how those facts would fit into the necessary legal structures relevant to his claim. We thought Mrs Taylor to be an honest and careful witness. She did not know much about the Claimant s case, but was asked at a late stage to accompany him to the Tribunal. She recalled him struggling in his evidence. Undoubtedly he did not find it easy to explain to the Judge how the facts, as he saw them, founded a claim for discrimination. One example, to which Ms Morgan drew attention, was where the Claimant had said at the outset that the only incident of discrimination about which he was complaining was his dismissal, but later that he had argued that the introduction of a policy to check children hourly during the night was another act of race discrimination against him. Ms Morgan saw this as a change of tack by the Claimant, consistent with her general view that he sought to interpret the facts to fit a conclusion he had already reached, rather than reach his conclusion in the light of the facts. It was open to another perspective: that it might have been an indication of a difficulty in fitting the facts to unfamiliar legal concepts. We consider, as Mr Milsom on behalf of the Respondent urged us to do, that the Claimant had much in common with litigants -12-

16 unfamiliar with legal process who are often uneasy in identifying the appropriate analysis on legal principle, which they may not fully understand, to apply to facts which they do understand in order to achieve a desired legal remedy. We think that the discomfort which Mrs Taylor witnessed was more likely to be the difficulty the Claimant had in that respect, rather than a difficulty with the language in which to express them. We note that although the Claimant said that he had difficulties in understanding, the evidence suggested to us that he did not as often request Counsel or Judge to repeat a question as the Judge requested him to repeat his answer so that the Judge could properly understand what it was. This would suggest the difficulty he had with spoken English lay more in expressing what he had to say in a legal context, rather than in understanding what was being said to him. 36. The Claimant confirmed that he had lived for 17 years in the United Kingdom and since 2004 had not had speaking contact with others whose language was Khmer. He had therefore had the almost exclusive society of English speakers for some ten years. 37. We accept Ms Morgan s evidence that in order to be recruited for the post of night worker (which he occupied in succession to a job with Birmingham City Council) he necessarily had to display sufficient command of English to deal with matters in writing, engage in group discussion, understand the applicable national minimum standards, engage with safeguarding issues, and to be able to report in respect of the children under his care. He was the only Khmer speaker at the homes where he worked. He engaged with his fellow staff in English. 38. The issue for us is whether it was wrong in law to proceed with a hearing in the light of the Claimant s previously expressed desire to have an interpreter because he was conscious that he might have to struggle with language, particularly of a technical, legal kind. If a party wishes to have an interpreter present at a hearing, there will in general be no reason why an -13-

17 Employment Tribunal should not facilitate this as best it can. It should in general strive to do so. This, however, falls short of requiring that an interpreter be provided, at public expense; or that a hearing cannot proceed without an interpreter being present on the basis it would be unjust to do so. 39. There may be circumstances in which the command of English (or, it may be, Welsh in those cases in which proceedings are to be in Welsh, the other language in which proceedings may be conducted as of right in this jurisdiction) is poor, such that through a lack of knowledge of the language a litigant simply cannot give the account which they would wish to give to the fact-finding and decision-making Tribunal. In such a case, there is a powerful argument that the Tribunal simply must take all reasonable steps, including funding, to secure the services of an interpreter, and that it is insufficient to offer the litigant the choice of whether to proceed on that day, or to wait until a later date when an interpreter might be found. Litigants with very little command of English cannot be expected to understand, or to respond appropriately, to such an offer if made, especially since it might require the consequences of either acceptance or rejection to be spelt out in what will necessarily be a tongue foreign to them. 40. A second scenario is one in which the litigant has such a well-demonstrated ability to speak, write or read English (as the case may be) that the Tribunal concludes that an interpreter is simply unnecessary. In such a case it not only may but should reject the request: but in any case involving a person whose mother tongue may well not be English, it should think long and hard before drawing this conclusion. 41. A scenario which sits between these two is one in which the litigant has some command of language rather than lacking it altogether, but wishes to be assisted by an interpreter. Here, an assessment of his need seen in the context of achieving justice must be made by the Tribunal -14-

18 upon all the available information. The principle is that which was articulated by Ms Barney: to ensure fairness, by providing equality of arms as near as may reasonably be achieved. It must, however, be remembered that Article 6 itself does not speak directly of a party having an absolute right to the services of an interpreter. AB v Slovakia speaks of affording a reasonable opportunity to present the case. Natural justice does not guarantee the party an absolute right to present a case in court, but (in context) a reasonable opportunity to do so. If it were otherwise, those litigants who seek serially to postpone a hearing without good reason, or simply absent themselves from the court, would secure an adjournment by those means, and thereby defeat the object of delivering justice within a reasonable time, itself part of Article 6. What is a reasonable opportunity of presenting a case, where there are language difficulties, is not susceptible of one single answer. All will depend upon the court s assessment, in the light of the available evidence, of the standard of understanding and expression, particularly oral where a hearing is to be oral, but written where it is to be written, carefully bearing in mind that easy understanding of the written word may not be reflective of an easy ability with the spoken word. Spoken and written language are different; written documentation can be studied away from the pressures of court, whereas oral expression often calls for immediate comprehension and response, under pressures which are unfamiliar even for those who speak no other language than that of the Tribunal concerned. 42. We are reluctant to give general guidance, as the sift judge indicated we might, on the basis of experience of the particular facts of one case. In the event, Mr. Milsom (in further submissions in writing which we left it open to the parties to provide if they wished) argued that an ET should exercise considerable caution in seeking to go behind a decision of a litigant: see Drysdale v Department of Transport [2014] IRLR 892, in the analogous situation in which the Court of Appeal considered the extent to which a Tribunal could properly second guess a litigant s apparent choice, noting that: -15-

19 Other than in exceptional cases such an enquiry would not only be unnecessary but also inappropriate: it could be construed as an invitation to disclose privileged material relating to the claimant s view (or advice received) as to the merits of the claim and/or as an intervention which might well prejudice the interests of the other side. In many cases it could also prejudice the interests of the claimant himself, who might be persuaded by the court s intervention to pursue an unmeritorious case he was otherwise minded to abandon. 43. He submitted that identifying those exceptional circumstances by way of a workable test is a dangerous business which the CA strongly discouraged in Drysdale; that the ET has a wide margin of appreciation in this regard since it is best placed to assess the material, representations and characters before it, and must do so on an ongoing basis: it was not bound hand and foot by the views of a differently constituted Tribunal which had earlier considered the question. 44. He referred to the guidance given by the Equal Treatment Bench Book in respect of mental capacity (p.111), to the extent that that may legitimately be read across to questions of understanding which rely not on mental but on linguistic abilities. These facilities are similar in that both relate to a person s capacity to understand proceedings. In the light of that an ET should not seek to second-guess a litigant s decision, even if that decision might seem foolish. Where there are signs that cause some alarm, the test for intervention is a high one, and depends critically upon the ability of the litigant to recognise problems and receive information. 45. We are reluctant to give any prescriptive guidance, since individual circumstances vary so much, as do the particular demands of different cases. Much can in our view be left to the good sense of the Judge, who is in the best position to assess these. That said, a useful test for a Tribunal to consider while making such an assessment in circumstances in which it is called for -16-

20 is to 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. 46. In circumstances such as those in the present appeal, on the face of it giving a choice of proceeding, or alternatively waiting until an interpreter may be found if one can be, provides a reasonable opportunity for litigants to have an interpreter if they wish. A judge must be satisfied that the litigant s understanding of that issue is sufficient for the choice to be real. We are satisfied on the evidence that that was the case here. We accept that the point was raised, and not simply in passing. We accept that the alternative was put to the Appellant in simple language. His facility with language, whilst not adequate to enable him to deal easily with legal concepts, appeared to the Judge to be ample to cope with the question whether he was happy to proceed. He said he was. In asking that question, and receiving that response, any unfairness that there may have been in failing to set out the alternative to wait until an interpreter might be available in the letter of 8 th November was remedied. (We do not necessarily think there was such unfairness, bearing in mind in particular that a letter sent on a Friday could be expected to arrive with the Claimant by the Monday (Saturday would be uncertain) giving only two days to adjust arrangements, and it was sensible of the Tribunal to leave the question to the Judge at the hearing, as the letter itself anticipated). 47. Though the Judge s duty to ensure a fair hearing is a continuing one, we do not think that there was any such unfairness during the course of the continuing hearing as to require the Judge to reconsider his decision to proceed which, on our view of the law, he had at all times to remain prepared to review. We see no evidence he neglected that duty. The discomfort which was most clearly apparent was not the expression of the Claimant s understanding of the facts upon which he relied, but how best to respond to the invitation to say how, on those facts, he hoped to make out his legal claim. -17-

21 48. Thus at none of the three stages identified by Ms Barney was there such unfairness as to amount to a material procedural irregularity or be productive of real unfairness. 49. By way of observation, there are aspects of the hearing which concern us. The Judge heard no evidence from the Respondent. Yet the burden of proof in showing what the reason for dismissal was lay on the Respondent. Though the Claimant was entitled to put forward an alternative reason (as he did) that was not a pre-requisite for him to succeed. Nor did it convert the statutory question into one in which a Tribunal had simply to choose between two alternatives. The question posed by the statute is not which of two possible reasons is more likely, but what was the actual reason for dismissal, and it is for the Respondent to prove it under Section 98 of the Employment Rights Act We are surprised, too, that the Respondents did not call evidence of the principal decision-maker at either or both of the disciplinary or appeal stages. They alone could give direct evidence of the real reason for the dismissal. 51. We are further surprised that the purpose of calling the Claimant to give evidence was not so much to deal with the facts which he was asserting as giving rise to his claim, but for him to give evidence as to what his claim was. That does not seem to us to be an appropriate way of proceeding, not least because in acceding to Counsel s invitation to take this course, the Employment Judge put the Claimant in a position in which he did not simply have to explain, in submissions to the Tribunal, what fell within the scope of his pleaded case, upon which the issue of strike-out fell to be determined (as would be the normal course), but was open to crossexamination by Counsel on behalf of his opponent about what his case was. Yet he had no opportunity of his own to ask questions of the Respondent, on oath, so that it could explain the nature of its response. There is an imbalance of treatment here, as well as an assumption that a -18-

22 litigant s case is a matter of evidence rather than to be taken from the pleadings. However, no ground of appeal was raised in respect of this failure to ensure a level playing field, and we see no direct relationship between it and the procedural irregularity alleged as the central ground. We hope, however, that the practice of calling one party to face cross-examination so that they can explain under hostile questioning what their case is is not followed in later cases, at least without there being compelling reason for this course. 52. Appeal to the Appeal Tribunal lies on a point of law only. To proceed without an interpreter was to exercise a discretion to do so. The Tribunal raised the issue with the Claimant. He said he was happy to proceed. The Lay Members emphasised that if, after the Claimant had said so, the Judge had then decided nonetheless to adjourn the case, he would not have been paying proper respect to the Claimant s autonomy; and, as Mr Milsom submitted, it would be overriding the express wishes of a person fully aware of the issues, capable of making a choice, who had done so whilst sufficiently understanding the nature of the choice he was making. 53. We do not accept that there was any material procedural irregularity. We turn to the second ground of appeal. 54. Rule 37 of the Employment Tribunal Rules 2013 provides materially:- (i) At any stage in the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds (a) Where it is scandalous or vexatious or has no reasonable prospect of success 55. The words are no reasonable prospect. Some prospect may exist, but be insufficient. The standard is a high one. As Lady Smith explained in Balls v Downham Market High School and College [2011] IRLR 217, EAT (paragraph 6): -19-

23 The Tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the words no because it shows the test is not whether the Claimant s claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the Respondent either in the ET3 or in the submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects 56. In Romanowska v Aspirations Care Limited [2014] (UKEAT/015/14) the Appeal Tribunal expressed the view that where the reason for dismissal was the central dispute between the parties, it would be very rare indeed for such a dispute to be resolved without hearing from the parties who actually made the decision. It did not however exclude the possibility entirely. 57. The judge was fully alert to the restrictive legal principles. He recognised that it was only in exceptional cases that a claim should be struck out as having no reasonable prospect of success when the central facts were in dispute. Here, however, he thought the case exceptional, that there were no central facts in dispute and that there was no crucial core of disputed fact. He added in paragraphs 28 and 29 as follows: 28. There is no need for a Tribunal to hear and evaluate evidence in order to determine the outcome in respect of either of the Claimant s claims. 29. The test I have to apply is no reasonable prospect of success not no prospect of success. The unfair dismissal is, in my judgement, hopeless. The race discrimination claim is, against the undisputed evidence, wholly devoid of merit. It is clear that in an appropriate case even a claim for discrimination can and should be struck out if the Tribunal can be satisfied that it has no reasonable prospect of success. As I have indicated, that is my conclusion in relation to both claims. 58. In his document headed Basic Grounds of Race Discrimination Claim the Claimant alleged that he would not have been dismissed if there had been no race discrimination against him. He did not identify how or why the individuals who took the decision, were, or might be, discriminating against him, nor identify facts from which it could be concluded that they might have been. To establish a claim of direct discrimination, he would have to show that he was -20-

24 treated less favourably than a person not of his race would have been treated. However, no comparator is identified in his claim. To succeed, the Claimant would need to show that a hypothetical comparator of another race would have been treated better than he was. None of the facts identified in the ET1, or for that matter in the records made of what the Claimant said on his appeal and disciplinary hearing, were capable of establishing beyond mere speculative assertion that a person of another race (in the context of this claim a black Jamaican) would not have been dismissed if they had been the author of a report such as that penned by the Claimant in respect of Newton Road. 59. The second ground upon which race discrimination was said to arise supposed that the Claimant suffered a detriment arising from the introduction of a policy of checking children hourly during the night, unnecessarily. The detriment was that the Claimant and a Mr Saeed would be unreasonably exposed by this policy to claims of interfering with those children. It was not in dispute that he and Mr Saeed were the only staff on night wake duty. There was no material here to suppose that an hypothetical Afro-Caribbean worker would have been treated more favourably, since no-one else was in that situation, and there was no evidence to infer that an hypothetical comparator of another race would be treated any differently. 60. Paragraphs 3, 4 and 5 of the Claimant s note setting out the basis of his claim for discrimination were to the effect that the Claimant was suspended when it was said he had misbehaved, whereas when Mr Perkins (a black Jamaican) was said to have misbehaved, he was not. Here there is an actual comparator. However, such a comparison has to be between those in the same material circumstances, and on any view the accusations made against the Claimant were very different from those to which Mr Perkins was subject. The Claimant himself also advanced the fact that Mr Perkins had previously been suspended for some reason, -21-

25 as had a number of other staff of Afro-Caribbean origin. He could not therefore assert that those of Afro-Caribbean origin were immune from suspension. 61. Paragraph 6, which asserted that two workers who are not of Afro-Caribbean origin failed their probation, whereas one who passed is, is without more insufficient to raise any inference that one race was treated more favourably than the other. On the face of it, it was simply a question of one person passing and another not, and could not remotely justify a conclusion that the assessment process was racially skewed. 62. We consider therefore that the Judge was entitled to assess that the case in respect of race discrimination had no reasonable prospect of success. 63. Discrimination once eliminated, there was no other potential reason which was apparent for the dismissal of the Claimant. The Judge was entitled to take the view that there was no formal claim that dismissal was principally for the making of a protected disclosure. Realistically, though it remained for the employer to prove the reason for dismissal, the Judge was right in the particular and peculiar circumstances of this case to think that the reason for dismissal must have been the making of allegations in the terms in which the Claimant did and in which he unashamedly persisted. Though we have criticisms of aspects of the procedure before the Tribunal which we have voiced above, this part of its decision making process was an assessment of the chances of success of the claim as articulated, in the light of facts which the Claimant accepted. The Judge was entitled to think that the case was one of those rare occasions when he could properly strike out the claim as having no reasonable prospect of success. 64. For those reasons, we dismiss the Appeal. -22-