Appeal No. UKEATS/0033/09/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
On 29 October 2009

Before
THE HONOURABLE LADY SMITH
MR P PAGLIARI
MR R P THOMSON

MR KESTUTIS KRISTAPAITIS	APPELLANT 

THISTLE SEAFOOD LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	Mr K Kristapaitis
(The Appellant in Person)	
For the Respondent	Mr S Robertson
Solicitor
Messrs Paull & Williamsons Solicitors 
Union Plaza
1 Union Wynd
Aberdeen 
AB10 1DQ	

SUMMARY

SUMMARY 
Claimant was a Lithuanian, employed in a fish processing business and dismissed because his hands were heavily contaminated with e-coli bacteria causing his employers to infer that despite factory rules and a prior warning, he had not washed his hands properly after having been to the toilet.  Dismissal automatically unfair due to failure to follow the statutory dismissal procedure but no monetary award made because of the extent to which the claimant had contributed to his own dismissal.  Appeal on grounds of inadequate interpretation at hearing and contradiction in the tribunal’s judgment dismissed.

THE HONOURABLE LADY SMITH

INTRODUCTION
1.	This is an appeal from the judgment of an Employment Tribunal sitting at Aberdeen,   Employment Judge R G Christie, registered on 19th May 2009 and dismissing the claimant’s claim; although he was found to have been unfairly dismissed, no monetary award was made because the Tribunal also found that he had by his conduct contributed to his dismissal to the extent of 100%.  At paragraph 39 of their judgment, the Tribunal explain:
“In such circumstances in our view it was not just and equitable for even a basic award to be made in favour of the claimant.  The final outcome therefore is that whereas the dismissal has been found to be unfair (for the “technical” reasons given above), there will be no monetary award.” 

2.	The hearing took place on 20th April 2009.

3.	The claimant represented himself before the Tribunal and before us although he was supported by Professor Zhelev of the Dundee Business School, throughout the appeal hearing.  The respondents were represented by Mr S Robertson, solicitor, before the Tribunal and before us.  

Interpretation 
4.	By handwritten note dated 30th January 2009, the claimant requested that the Employment  Tribunal provide a “LITHUANIAN (Russian) Interpreter”.  He is Lithuanian and his mother tongue is Russian.

5.	The Tribunals Service maintains a panel of interpreters.  They are used in various tribunals including Social Security, Immigration and Employment  Tribunals.   The booking of interpreters for hearings is handled by the Asylum and Immigration Tribunal office in Loughborough.  

6.	By request form dated 2nd February 2009, the Employment Tribunal office in Aberdeen intimated to the AIT that they required a Lithuanian or Russian interpreter for 20th April 2009.

7.	By letter dated 18 February 2009, addressed to the Employment  Tribunal office in Aberdeen , the claimant advised:
“I K Kristapaitis confirm that I will need Russian interpreter.” 

8.	Dr John Coutts was booked for the hearing by the AIT.  He lives in Stirling.  He has been on the Tribunal Service’s panel of interpreters since 1997 and is a qualified Russian interpreter, having been duly assessed as such by the Chartered Institute of Linguists.  

9.	Dr Coutts provided interpretation and translation services during the Tribunal hearing on 20th April 2009.  In paragraph 3 of their judgment, the Tribunal record their thanks to him for the effort he expended during the hearing.  

10.	Mrs Svetlana Mackenzie who is also on the Tribunals Service panel of interpreters, has been on the panel since 1998 and is duly qualified under the requirements of the Chartered Institute of Linguists as an interpreter of Russian, provided interpretation and translation services at the appeal hearing before us.  Professor Zhelev, who speaks good English, also spoke to the claimant in Russian at times during the hearing for the purpose, he told us, of explaining some matters to him.   

11.	The claimant was advised, at the start of the appeal haring, to say if he had any difficulties at all with the translation services he was receiving from Mrs McKenzie.  He did not raise any difficulty with us.  He appeared to be able to communicate well with her and seemed satisfied with the support that she provided.  He also, at one point indicated that he does have a basic grasp of English.  He completed his form ET1 in English.  

BACKGROUND 
12.	The respondents produce fish related products for the retail food market.  The claimant was employed by them at their premises at the harbour in Peterhead.  Hygiene is of paramount importance.  The respondents employ a bacteriologist and an assistant who operate a laboratory on the site.  They monitor hygiene levels in the food products, within the factory and on individual employees, all by random swab testing.  

13.	Employees are made aware of the importance of hygiene in the Employee Information Booklet and via staff notices which are translated into other languages including Russian.  On 28 May 2008, the claimant was disciplined for having poor hygiene standards noted as being “failing to wash hands after touching nose/face.”  He received a verbal warning and a record of it was placed on his file.  The warning was “live” as at September 2008.  

14.	Bacteria known as e-coli are to be found in human faeces.  If ingested they can cause serious illness.  The respondents were particularly concerned to protect against the risk of their products being contaminated with e-coli.  Accordingly, the booklet and notices stressed the importance of employees washing their hands with special anti-bacterial soap that was provided by the respondents, whenever they entered the factory and whenever they had visited the toilet.  As at September 2008, the respondents’ levels of concern about the matter were such as to prompt the managing director to write a letter to all employees which included the following terms:
“It has been brought to my attention that there are members of staff who are still not washing their hands when they have been to the toilet and also when they are entering the factory.  This practice is totally unacceptable.

We have over the past few weeks increased our frequency of swabbing individuals’ hands and gloves, and have found in certain cases individuals with Ecoli bacteria on their hands or gloves.  This is totally unacceptable.  I want to make it quite clear to all members of staff that if they are found to have Ecoli on their hands or gloves, or are seen to leave the toilets or entering the factory without washing their hands, then this will lead to instant dismissal.

I do not take this action lightly but every member of staff has to understand that it only takes one person not to wash their hands and to subsequently contaminate a door handle or a piece of equipment, to result in the whole production line being contaminated and subsequently all products prepared on that line.” 

15.	The letter was issued in a variety of languages including Russian.

16.	On 16th September, the bacteriologist and her assistant were carrying out random swab tests.  They saw the claimant as he emerged from the toilet.  The Tribunal, at paragraph 16, found:
“They noticed that his hands were dripping wet and they took a swab test: it was found in the laboratory that there was contamination by e-coli bacteria to such a degree that the number of ‘colony forming units’ could not accurately be counted.  The result was recorded simply as being in excess of 1000cfus which was by far the highest which Ms Skakel had ever encountered and represented a very high concentration of e-coli bacteria.  This gave her grounds to form the belief that after using the toilet the claimant had failed to wash his hands properly and had at least failed to use the prescribed soap which has the effect of killing of the bacteria.” 

17.	The claimant was dismissed without either step 1 or step 2 of the statutory dismissal procedure being followed.  He appealed and his appeal was rejected under reference to the fact of repeated warnings about hygiene including the warning issued on 28 May 2008, to the fact of the extremely high level of e-coli on his hands and also 
“the fact that you showed no remorse for your actions.” 

The Tribunal’s Judgment 
18.	As we have indicated, the Tribunal found there to have been automatically unfair dismissal because of the failure to follow the statutory procedures but made no monetary award due to the extent of the claimant’s contributory conduct.  They clearly explain, at paragraphs 38 and 39 why they took such a serious view of his conduct.  

19.	Evidence was led for the claimant from a fellow employee, Nick Raby, apparently for the purpose of supporting the claimant’s case that he was unfairly being singled out for special treatment.  He spoke to having heard a conversation between the bacteriologist and her assistant but the Tribunal rejected his evidence.  At paragraph 34 they explain:
“We found this witness’s evidence to be quite hopeless in so far as assisting in the establishment of any facts was concerned.  It was of such vagueness and imprecision that we could draw no conclusion from it whatsoever.” 

Relevant Law 
20.	In terms of s.122(2) and 123(6) of the Employment Rights Act 1996 it is open to an Employment  Tribunal, in its discretion,  to reduce the basic award and compensatory award that would otherwise be due in respect of unfair dismissal on the ground that it is just and equitable to do so.  

The Appeal 
21.	There were two grounds of appeal.  The first ground was to the effect that the claimant doubted Dr Coutts’ ability to translate Russian to English and English to Russian.  The claimant appeared to believe that Dr Coutts had been called in at the last minute.  He spoke of a Polish interpreter having appeared in the tribunal waiting room at first and when he had explained that he did not want a Polish interpreter, Dr Coutts having  appeared, within a matter of minutes.  The impression he had was that the Tribunal had booked the wrong type of interpreter and of Dr Coutts having been rushed in as a last minute substitute.  

22.	He referred to Dr Coutts, on several occasions, translating in a way that he could not understand.  On those occasions he told Dr Coutts he did not understand, Dr Coutts asked the Employment Judge to explain the matter again, he did so and Dr Coutts interpreted again.  He then understood what was being explained.  The nub of the claimant’s complaint came to be, as he put it, that Dr Coutts did not know the law terminology regarding his case.   Mr Robertson explained that, according to his recollection, there were occasions when the Employment Judge had to “re-explain” the technicalities of unfair dismissal and automatically unfair dismissal.  It was when there were discussions about legal technicalities that it took more than one attempt to achieve an apparently satisfactory translation.  We have no doubt that finding the right language to explain concepts such as unfair dismissal, the statutory dismissal procedures and automatically unfair dismissal , in a manner that was readily understandable to a non lawyer who was also tasked with translating the explanation of those concepts into Russian, will not have been a straightforward matter.  We are not at all surprised if it took the Employment Judge more than one attempt to find a satisfactory way of doing so .

23.	The claimant also referred to the fact that Dr Coutts seemed to be elderly and to the fact that the Tribunal gave him a break in the middle of the afternoon.  His inference seemed to be that these matters showed that Dr Coutts was not fit to cope with the task.  

24.	The second ground of appeal was to the effect that there was a contradiction in the Tribunal’s judgment.  On the one hand they found that the bacteriologist and her assistant had confronted the claimant when his hands were “dripping wet” and on the other hand they had found that he had not washed his hands.  If his hands were dripping wet that was, he said,  proof that he had washed his hands.

25.	The claimant also sought, in the course of the appeal, to persuade us to take a different view of the facts of the case.  He, at several points in the course of submissions, gave an account of what had happened when he came out of the toilet which involved criticism of the bacteriologist and her assistant as being aggressive and failing to take a swab from the door handle.  He made general references to people misusing their authority so as to fire him.  We explained to the claimant that the appeal was not a rehearing and we could not make fresh findings in fact.  

26.	The claimant also said that he had not been allowed to call a witness who was in the waiting room.  Her name was Baiba Briede and she was a fellow employee.  He had accompanied her to a disciplinary hearing and she had been the employee representative at his disciplinary hearing. He wanted her to give evidence.  The Employment Judge had, however, told him he had won the case and he did not require to lead any further witnesses.  This matter did not feature in the notice of appeal.  

27.	For the respondents Mr Robertson moved us to dismiss the appeal.  He explained that the impression he had of Dr Coutts’ services was that they were good and it was a surprise to him to read in the notice of appeal that their quality was being challenged.  No challenge to his ability to provide appropriate interpretation services was made during the hearing.  Dr Coutts’ services had been booked long in advance.  He came from Stirling; he had provided Mr Robertson with his card which had a Stirling address on it.  He did not appear to tire physically.  The mid afternoon break was because it was obvious that he had the hardest job at the hearing.  So far as age was concerned, he appeared to be about 60 years old.

28.	Regarding the second ground of appeal, Mr Robertson submitted that it was open to the Tribunal when evaluating the evidence to prefer that of one witness to another.  In this case it was open to them to prefer the evidence of the bacteriologist to that of the claimant and to reach a conclusion, based on the evidence heard, that the claimant had not followed the proper hygiene procedures.  That involved the employees being required not just to wash their hands after visiting the toilet but to do so with the special anti bacterial soap provided.  It was not inconsistent for the Tribunal to find that the claimant’s hands were dripping wet and that he had not washed his hands correctly within the toilet area.  Proof that he had not washed his hands in accordance with the required procedure was afforded by the result of the swab test.  

29.	As to the matter of Ms Briede’s evidence, Mr Robertson had no recollection of the claimant trying to call her as a witness and being prevented from doing so.

Discussion and Decision 
30.	We will deal with each ground of appeal separately.  

Dr Coutts’ Interpretation Services
31.	We reject this ground of appeal.  We are satisfied that Dr Coutts was duly and appropriately qualified and was booked for the hearing over two months in advance of it taking place.  We should add that we have seen the relevant booking forms.  We are not persuaded that we should infer from any attendance of a Polish interpreter at the Aberdeen Employment Tribunal on the morning of the hearing that Dr Coutts was a last minute stand in.  Nor are we persuaded that Dr Coutts’ age was such as to give rise to an inference of incapacity.  The same can be said for the afternoon break.  It is quite normal, when interpreters are working in a court or tribunal setting, to break more often than normal in recognition of the arduous nature of their task.  As regards the need for the Employment Judge to re-explain, we cannot infer from that that Dr Coutts lacked the requisite competence.  It is not, as we have indicated, surprising that it took more than one attempt for the Employment Judge to explain legal concepts in a way that Dr Coutts understood and could translate from and does not point to any lack of skill on the part of either the Employment Judge or Dr Coutts.  

Whether the Tribunal contradicted themselves
32.	For the reasons advanced by Mr Robertson, we reject this ground of appeal also.  It is not inconsistent to find that the claimant’s hands were dripping wet and to find that he had not washed them properly.  The fact that a person’s hands are wet only shows that he has had his hands in or under water.  It does not, of itself, give rise to the conclusion that he has washed them with soap. In particular, it does not, of itself, point to him having washed them with anti-bacterial soap.  The laboratory findings in this case enabled the respondents and the Tribunal to conclude that the claimant had not done so.  We do not find any fault with the Tribunal’s judgment.  It is clear and well reasoned.  

Witness not called
33.	As we have explained, there was no ground in the notice of appeal regarding the Tribunal refusing to allow the claimant to call a witness.  Had there been, we would have referred back to the Tribunal with a specific question about the matter under the procedure set out in Barke v SEETEC Business Technology Centre Ltd [2005] IRLR 633.  However, we cannot see that the evidence would have been material.  As we understand it, the purpose of calling her would have been to support the claimant in his case that the respondents were unfairly determined to get rid of him.  As such, it would have been evidence in support of his case that he had been unfairly dismissed.  We understand from what we were told by the claimant and by Mr Robertson, however, that the tribunal stated , in the course of the hearing, that they would be making a finding of unfair dismissal.  In those circumstances, Ms Briede’s evidence would have been otiose.  

Disposal 
34.	In these circumstances we will pronounce an order dismissing the appeal.