Presidential Guidance on employment tribunals taking oral evidence from persons located abroad

The Presidents of the Employment Tribunals in England and Wales, Barry Clarke, and in Scotland, Shona Simon, have issued guidance for employment tribunals on how they should take evidence by video or telephone from persons located abroad. They have confirmed that employment tribunals should follow the approach in the case of Agbabiaka, i.e. that enquiries must be made of the foreign state where the person is located to ascertain whether it objects to evidence being given orally to a tribunal in the UK from within its territory. The guidance sets out the process to be followed when a party wishes to adduce evidence by video or telephone from persons located abroad.

What are the practical implications of this development?

This is an important development because the new guidance sets out clearly the process that a party should follow when they wish to adduce evidence by video or telephone from persons located abroad. The key practical points to note are that:

• the Taking of Evidence (‘ToE’) Unit within the Foreign, Commonwealth and Development Office is responsible for ascertaining the stance of different overseas governments to the taking of oral evidence from persons within their territory. On that matter, the response of the ToE Unit is determinative
• in any case where a party wishes to rely on oral evidence by video or telephone from a person located abroad (including evidence from the party personally), that party or their representative must notify the employment tribunal office which is dealing with the case of the following:
  • the case number
  • confirmation that the party wishes to rely on evidence from a person located abroad
  • the dates of any listed hearing(s) in respect of which the request for the person to give evidence from abroad is being made
  • the state from whose territory that person would, if permitted, be giving oral evidence
• upon receipt of this information, HMCTS will contact the ToE Unit on behalf of the party seeking to rely on such evidence
• if the ToE Unit is aware from previous enquiries of the stance of the state in question, it will confirm to HMCTS that the state has no objection to evidence being given orally from within its territory. Otherwise, the ToE Unit will make an enquiry of the state via the British Embassy or British High Commission in that country but note that it may take months to receive a reply so the employment tribunal should be notified as soon as it is apparent that evidence from a person located abroad may be needed
• HMCTS will inform the party that made the request of the response from the ToE Unit.

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