Under Article 6 of the European Convention on Human Rights (ECHR), everyone has the right to a fair trial and one of the elements of this concept, referred to as 'the principle of equality of arms', is that each party should have the right to present their case in conditions that will not put them at a substantial disadvantage compared with their opponent.
In Hak v St Christopher's Fellowship, the Employment Appeal Tribunal (EAT) found that neither natural justice nor Article 6 of the ECHR gives a person taking part in proceedings that are not being conducted in their first language an absolute right to the services of an interpreter. Rather, it affords them a 'reasonable opportunity' to present their case. However, the EAT declined to give specific guidance as to what is a reasonable opportunity of presenting a case, as this will depend on the assessment carried out by the Employment Tribunal (ET) of an individual's ability to understand and express themselves based on the available evidence in each case.
Mr Hak, a Cambodian whose first language was Khmer, had claimed that his dismissal from his employment as a night wake worker at a children's home in Birmingham was both unfair and discriminatory on the ground of race. Shortly before a preliminary hearing as to whether or not his claims should be struck out, he requested an interpreter, but it proved impossible to provide one at such short notice. The hearing proceeded after the ET had satisfied itself that Mr Hak would be able to fully understand the proceedings and was happy to conduct his case on his own. The ET found that Mr Hak's claims had no reasonable prospect of success and should therefore be struck out. He appealed against the decision.
Following a hearing at which a Khmer interpreter was present, the EAT dismissed Mr Hak's appeal, finding that, in the particular circumstances, there had been neither material unfairness nor procedural irregularity. In its view, he had been given a real choice as to whether or not he was happy to proceed with the preliminary hearing without an interpreter, even though he claimed not to understand the meaning of the word 'adjourn', and the ET had seen no reason to question his decision as the hearing progressed. Mr Hak's difficulties stemmed more from unfamiliarity with the legal process than from difficulty with the language being used. He had lived in the UK for 17 years and had not had contact with anyone else who spoke Khmer since 2004. Furthermore, he had demonstrated a facility for written language and his job required a certain command of both spoken and written English.
In the EAT's view, the ET was entitled to find that this was one of those rare cases when a claim could properly be struck out as having no reasonable prospect of success.
Whilst reluctant to give any specific guidance, given that individual circumstances and the demands of different cases vary considerably, the EAT suggested that a useful test to consider when making an assessment in such circumstances 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'.