Witnesses giving oral evidence from abroad – New Presidential guidance
On 27 April 2022, new Presidential Guidance was issued in relation to the taking of evidence by video or telephone from persons located abroad. Since the pandemic, the use of CVP has become common place and, in some cases, little thought has been given to where a witness is situated. However, the new Guidance highlights the importance of considering this point at an early stage and ensuring that the appropriate permissions are in place.
This point must now be considered carefully. The issue received judicial consideration by the Upper Tribunal (Immigration and Asylum Chamber) in Agbabiaka (Evidence from Abroad, Nare Guidance) UK UT 286. Although not binding on the Employment Tribunal, the Presidents considered it necessary to issue the Guidance.
In short, where a witness is to give oral evidence from abroad, enquiries must be made of the foreign state where the person is located to ascertain whether it objects to the evidence being given from abroad to the United Kingdom Employment Tribunal.
Parties must notify the Tribunal office of the case number, confirmation that they wish to rely on evidence from abroad, the dates of any listed hearing(s), and the state from whose territory a witness would, if permitted, be giving evidence. The name of the witness is not required nor any summary, and it does not need to be copied to the other side.
HMCTS will contact the Taking of Evidence Unit at the Foreign Office, who will confirm whether permission is required. If the country is one from which the FCO knows there is no objection, it will confirm it. However, responses can change based upon the local situation at any given time. Otherwise permission will be sought, but responses to requests are likely to take some time.
As the Guidance explains, applications should be made in a timely manner, and the decision of whether to postpone or delay a hearing to allow enquiries to be carried out is a judicial decision and therefore a matter for the Tribunal. Such issues will need to be discussed at case management hearings where necessary, and the Tribunal will expect to consider with the parties whether the evidence is relevant to the issues, why the person cannot attend the hearing in person, and other alternatives.