OCS CLEANING SOUTH LTD v MRS S DHILLON [2000] UKEAT 778_00_0611

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 778_00_0611

Case No Appeal No. EAT/778/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

OCS CLEANING SOUTH LTDAPPELLANT

MRS S DHILLONRESPONDENT

Before

Sir Christopher Bellamy

Date 6 November 2000

[1]APPEARANCES For the Appellant MR C BARR Human Resources Manager SIR CHRISTOPHER BELLAMY QC This is an Appeal which comes before us by way of Ex Parte Preliminary Hearing from the decision of the Employment Tribunal sitting at London (North) sent to the parties on 17 May 2000. The Applicants before the Tribunal were a husband and wife who worked for the Respondent Company, OCS Cleaning South Limited, on cleaning duties at Heathrow Airport. According to them, on 1 October 1999 they were sent home. They were told by the Security Officer at the airport that they could not carry on with their work because they had no security passes. They apparently reported that to the Respondent's manager, a Mr Lynam, who told them 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 that they required security passes and the Respondent Company had not organised them to have security passes. The Respondents' case was that they had in fact explained to the Applicants that they did not need security passes and that the Applicants were therefore absent from work without authority.

[3]The Tribunal found essentially, at paragraph 5 of its reasons "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. Mr 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 Tribunal went to find effectively in favour of the Applicants, and to hold in particular that Mrs Dhillon had been unfairly dismissed. There is no finding in respect of Mr Dhillon because of his age.

[4]What had in fact happened at the hearing was that the Dhillons gave evidence through an interpreter who was in fact their daughter-in-law. The daughter-in-law also gave evidence regarding a visit by Mr Lynam to the Applicants in their home.

[5]The decision having been sent to the parties on 17 May, on 19 May, the Respondents asked for a review of the decision on the grounds that 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 that the interpreter was in fact the daughter-in-law of the Applicant. That being case, the interpreter could not be said to be truly independent. The interpreter had herself given evidence, and that evidence, and her interpretation could involve the appearance of bias. In general, therefore, they contended that a fair hearing had not taken place.

[6]The Chairman rejected that application for a review on 30 May 2000 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."

[7]In the Notice of Appeal the Appellants essentially repeat their grounds already invoked in asking for a review, namely, that there was a breach of natural justice in that they were not warned in advance of the use of an interpreter, and that it was wrong for the daughter-in-law to act as an interpreter, in particular when the daughter-in-law herself gave evidence. Those arguments have also been presented today by Mr Barr, who has also assured us that, contrary to the impression given by the Chairman in paragraph 2 of the reasons, objection was in fact taken to the interpreter at the time. We are not, of course, in a position to determine any matter of fact in that regard but we have been told directly by Mr Barr that in fact an objection was taken.

[8]In these circumstances, what we have to decide today is whether there is a reasonably arguable error of law in this case. We do not have to say, at the end of the day whether the argument put forward is correct, only whether it is reasonably arguable. We have come to the conclusion that there is a reasonably arguable error of law in this case.

[9]We note that the ability of the Applicants to speak English was at many respects at the heart of this case. The Tribunal in paragraph 5 of its findings relied on the fact that the Applicants cannot speak English at all well and were relying on the services of an interpreter. And they further came to the conclusion that in those circumstances Mr Lynam had failed to explain sufficiently what the position was.

[10]The Respondents' case, however, is that they had explained the position to the Applicants very clearly. It is true that it emerges from paragraph 2 of the Tribunal decision that the Applicants had at least sufficient understanding of English to communicate with Mr Lynam what had happened to them at the airport and to explain to him what had happened.

[11]We note also that the Chairman in his reasons for refusing a review states that he could detect no bias in the interpreter who seem to him to be interpreting clearly and accurately. But we are told that the Chairman had accepted that he, the Chairman, did not himself understand Hindi; therefore it is not at first sight obvious how he came to that conclusion as regards the quality of the interpretation.

[12]We therefore think that there is today an arguable question of law in this case, which is whether the Tribunal was in breach of the rules of natural justice in permitting the Applicants' daughter-in-law to act as an interpreter in the circumstances of this case. It is on that point of law that this Appeal should go forward to a full hearing

[13]We stress that we make no finding at all as regards the merits of the argument one way or the other. We have simply found that at this stage of the proceedings the point is not unarguable. So the Appeal will proceed on that basis.