By James Lenihan Member, Employment Rights Manager &
James Tinston Employment Rights Lawyer
The President of Employment Tribunals (England & Wales) has issued new Presidential Guidance on how oral evidence from witnesses located abroad should be handled in tribunal proceedings. The guidance stresses that parties—particularly those with legal representation—must be proactive in ensuring there are no legal or diplomatic obstacles to presenting evidence remotely.
Key Points for England & Wales
1. Plan ahead and check permissions:
Parties must verify whether the country where the witness is based has granted standing permission for remote evidence. This can be done by consulting the Foreign, Commonwealth & Development Office (FCDO) webpage. If no standing permission exists, further enquiries with the country’s authorities or the Foreign Process Section may be required, particularly if the country is a signatory to the Hague Convention. This process could involve consular fees.
2. Responsibility lies with the parties, not the tribunal:
It is up to the party calling the witness to confirm there are no legal barriers to giving evidence remotely. The tribunal will not undertake this task. Delays in seeking permission could result in the tribunal refusing the request or imposing sanctions if a postponement occurs.
3. Tribunal discretion:
Even if permission from the witness’s country is obtained, the tribunal retains the discretion to allow or deny the remote testimony, taking into account the interests of justice and the overriding objective of conducting proceedings fairly and efficiently.
4. Complexity and risks:
Parties should carefully assess whether remote oral evidence is in the interests of justice. The technical and procedural challenges can risk disrupting hearings, so thorough preparation is essential.
Simpler Approach in Scotland
In Scotland, the rules are more straightforward. There is no requirement to seek permission from the country where the witness is located, as long as the evidence is given voluntarily. The decision to allow remote testimony rests solely with the employment tribunal, which assesses requests on a case-by-case basis.
To avoid disruptions, parties in Scotland should seek permission from the tribunal as early as possible if they intend to call witnesses located abroad.
Implications for Union Representatives
Union representatives involved in employment disputes should take note of the differences in procedure between jurisdictions. Early planning is crucial in England & Wales, where failing to meet the requirements could lead to delays or the exclusion of critical evidence. In Scotland, while the process is simpler, timely applications to the tribunal are still essential.
This guidance highlights the need for careful preparation when dealing with witnesses located overseas to ensure hearings proceed smoothly and without unnecessary interruptions.
