England and Wales

Whether a hearing is to be held in-person, remotely, or on a hybrid basis, the default position is that the parties and their witnesses are expected to participate in it from within the UK.

If a witness wishes to give their evidence to an employment tribunal from abroad, it is the responsibility of the party calling them to make enquiries as to whether the country from which they wish to give evidence will allow that.

This requires parties to plan ahead as, if the country in question is one which has not already given permission for evidence to be given to a foreign tribunal from within its jurisdiction, then the process of seeking permission may take significant time and could require payment of a consular fee.

Permission is required to demonstrate that there is no legal or diplomatic barrier to a party calling oral evidence from abroad. The guidance makes clear that a tribunal should not accept evidence where a party has been unable to demonstrate this.

Even where a party has obtained permission from the foreign state, the tribunal will not automatically allow oral evidence to be given from abroad, but will assess whether it is in the interests of justice to do so. As part of this analysis, the tribunal may consider a variety of factors, including, for example: why the witness cannot give evidence from within the UK; whether the evidence could be given in like terms by someone else who is located within the UK; and whether the evidence could be given in writing.

Scotland

The position in Scotland is markedly different. There, the parties are only required to seek the permission of the foreign state for a witness to give oral evidence from its territory where the giving of evidence would involve the Scottish court or tribunal seeking to exercise its powers within the foreign territory. This is not the case in an ordinary court or tribunal case where a witness is giving evidence voluntarily.

Accordingly, parties are not required to seek permission from another country where they wish for a witness to give oral evidence from that country voluntarily. It will be for the employment tribunal in each case to decide whether or not to permit this.

What does this mean for employers?

The new Presidential Guidance in England and Wales makes it more challenging to gain permission for evidence to be taken from abroad. While the tribunals are not legally bound by the Guidance, they must have regard to it and we do not expect that they would depart from it readily.

We will obviously discuss this with clients during any litigation but, where possible, employers who are party to employment tribunal litigation in England and Wales should, to the extent they can, seek to ensure that their witnesses are located within the UK, or that they can travel to the UK for the substantive hearing, in order to avoid the potentially protracted and complex process of seeking permission to give evidence from abroad. If there is a possibility that a witness may be abroad during the hearing, this should be raised as early as possible with the solicitor dealing with your case so that the evidence can be discussed and the process to check/gain permission can be started in good time, if necessary. Early planning and discussion in such cases will be key.