Presidential Guidance was issued on 26 April on taking oral evidence by video or telephone from people who are abroad.
It takes account of the recent Upper Tribunal decision in Agbabiaka (Evidence from Abroad, Nare Guidance) where it was held that enquiries must be made of the foreign state where the person is located to ascertain whether it objects to oral evidence being given to a UK tribunal from within its territory. The decision is not binding on the employment tribunals, but the Presidents have taken the view that it is appropriate to follow the same approach.
Employment tribunals have allowed people located abroad to give oral evidence by video or telephone for many years now, and, until recently, it was not generally considered necessary to obtain the permission of the foreign state in question. However, in Agbabiaka it was held that there is an understanding that one nation state should not seek to exercise the powers of its courts within the territory of another without having the permission of that other state to do so, and that the issue of whether it is lawful for a UK tribunal to take evidence given from another country is a question of law for that country. It also upheld the Foreign, Commonwealth and Development Office's (FCDO) stance that only the giving of oral evidence from a nation state requires the permission of that state, and that permission is not required for written evidence. The FCDO has since established the "Taking of Evidence Unit" (ToE Unit).
The Guidance states that a party who wishes to rely on evidence from abroad must notify the relevant employment tribunal office of the case number, provide confirmation that the party wishes to rely on evidence from a person located abroad, provide the dates of any listed hearing in respect of which the request is being made, and then state from whose territory that person would, if permitted, be giving oral evidence. HM Courts and Tribunal Service will then contact the ToE Unit and the ToE Unit will either confirm that the foreign state has no objections or will make enquiries of that state. As it can take months for the ToE Unit to receive a response to an enquiry via an Embassy or High Commission the Presidential Guidance notes that the tribunal must be notified as soon as it is apparent that oral evidence from a person abroad may be needed.
For more information on other recent and proposed developments in the tribunal system please see our latest bulletin, 'What's on the agenda for employment tribunals?'
