The Presidents of the Employment Tribunals in England and Wales and in Scotland have issued new presidential guidance on taking oral evidence by video or telephone from witnesses located abroad. This follows an acknowledgement from the Foreign, Commonwealth and Development Office (FCDO) that the employment tribunals are civil and commercial tribunals, rather than administrative tribunals, which brings them within the scope of the Hague Convention.
As a result, the joint presidential guidance issued in July 2022 that previously applied in England, Wales and Scotland has now been replaced by two sets of guidance, reflecting the different position taken by the civil courts in England and Wales and in Scotland.
Both sets of guidance refer to the principle set out in Agbabiaka (Evidence from Abroad: Nare Guidance: Nigeria) [2021] UKUT 286 that “there has long been an understanding among Nation States that one 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.”
Following Agbabiaka, the FCDO established its Taking of Evidence (ToE) Unit, which has created a web page summarising the position in relation to the taking of oral evidence from a large number of states, including whether that state has given a blanket permission. Under the new presidential guidance, parties to a claim in England and Wales should check that web page to establish whether permission has already been given. If not, permission must be sought, following the steps set out in the guidance, which differ depending on whether the relevant state is a signatory to the Hague Convention. However, no permission is needed for written evidence or for submissions (whether oral or written).
In Scotland, the Lord President considers that hearing oral evidence from abroad (where the witness has not been compelled to give evidence) does not amount to the exercise of the court’s power in a foreign territory. The Scottish guidance therefore now states that there is no need to seek the relevant state’s permission.
Employment tribunals must have regard to the guidance but are not bound by it. In both jurisdictions, the question of whether to allow oral evidence from an overseas witness, even where the relevant state has given permission, remains a matter for the tribunal’s discretion, and parties should seek permission from the tribunal as soon as possible.
With tribunals increasingly taking place on the tribunal’s CVP platform the ability for witnesses to be anywhere across the globe is a fact of life these days. Time will tell whether this platform for justice
Credit: Practical Law ®, Thomson Reuters.
