Giving evidence from abroad – what does HR need to know?
Change in tribunal practice
With the worst of the pandemic now behind us, much has been made about hybrid working arrangements and the return (at least in part) to the workplace. Many organisations have been attempting to retain some of the aspects of people’s working lives that were improved by the pandemic while bringing back the benefits of meeting in-person.
It is not just offices that are grappling with such matters. Employment tribunals too have needed to adapt to the shift in culture and practice brought about by the restrictions imposed during the height of the pandemic.
While video attendance at employment tribunal hearings was not unheard of before 2020, it very rarely came up in practice.
As an example, it used to be fairly typical that for a ‘case management hearing’ (being the discussion between an employment judge and the parties (and/or their representatives) to agree the preparation required to present the case at a final hearing) all the parties would have to turn up in-person at a tribunal centre for the hearing. As well as requiring a physical space for everyone to fit into, it meant that people sometimes had to travel significant distances for an entirely procedural hearing that can sometimes be over in as little as 20 minutes.
Such hearings now are almost exclusively done by telephone or by video hearing. Even with full hearings, video conferencing has been retained either in full or in part for witnesses with a valid reason for not giving their evidence face to face.
However, this change in approach has brought up new considerations which HR need to bear in mind should they be faced with a tribunal claim.
Witnesses located abroad
For many years, tribunals allowed witnesses who are located abroad to give oral evidence by video or telephone, without the need to obtain the permission of the country from which they are giving evidence. However, a recent case has brought a shift in this attitude.
In the case of Agbabiaka (which is not an employment tribunal matter) the Home Office objected to the giving of oral evidence by video from Nigeria because the witness was unable to demonstrate that the national authorities of Nigeria had permitted his participation in UK legal proceedings whilst he was in Nigeria. It was held that a UK tribunal must ask a foreign state for permission for a person to give oral evidence in the UK from within its territory. The employment tribunal (via presidential guidance issued on 27 April) will now be following the approach set out in Agbabiaka.
The case has made clear that if anyone intends to give oral witness evidence while they are based in a foreign jurisdiction, to do so could have diplomatic ramifications. Consequently, if someone is going to give evidence remotely from (for example) Japan, permission must be sought from Japan. It is the responsibility of the party who wants to rely on that witness to bring this to the tribunal’s attention.
If these circumstances arise, the tribunal should be notified, and the tribunal will then seek guidance itself from the government’s “Taking of Evidence” unit at the Foreign, Commonwealth and Development Office (FCDO).
What does this mean for HR?
Some key factors for HR teams to consider when it looks like the company might need the evidence of someone who is based in a foreign jurisdiction are:
- Consider how vital the evidence is (or is likely to be) and, if the tribunal claim has already started, whether it is worth making the application for permission at all. HR may also want to consider whether any alternatives are possible, such as whether another (UK-based) witness could provide evidence instead. If you have a case going to grievance, disciplinary or appeal, it may be worth considering the country that they are based in, particularly if you think it might be a case destined for the tribunal.
- If the witness is indispensable, tell the tribunal as soon as possible about the potential need to take evidence from a foreign location – it can take months for a response to come back to the tribunal. The FCDO recommend making contact at least 8-weeks before any hearing date.
- Where permission is either delayed or refused outright, the tribunal will need to consider alternatives, which may include questioning whether the evidence is necessary, requiring the witness to travel to the UK or a more cooperative state, or whether the evidence can be dealt with by written submission. It may be worth HR considering this point ahead of the tribunal. In some cases written evidence may be enough, but typically a tribunal will give limited weight to a witness statement if the person is not there to be cross-examined on its contents under oath.
- Ensure that you have dates to avoid for any witnesses when a final hearing is being organised. This is typically done at preliminary hearing stage, so following a preliminary hearing make sure the witnesses have their dates in the diary so that they don’t inadvertently book a holiday during that time.
- If you have a management witness who travels a lot on business, don’t assume that they will just be able to give evidence from their hotel room – it’s not quite as straightforward as that!
- If permission is granted for someone to give evidence from a foreign state, the usual ‘video call etiquette’ will apply. HR should ensure that the witness has the right equipment and internet access well ahead of the hearing date. Consideration should also be given to timings – what might be during business hours in the UK may well be the middle of the night for the witness.
These are fairly new rules, as Agbabiaka was only determined in October 2021. It is hoped that eventually there will be more information available as to which countries and territories permit giving oral evidence in a UK employment tribunal, which should eventually speed matters up. However, until that point, if you do become aware of a witness who might be abroad at the time of a hearing, it is always worth making this known to either the tribunal or (if you have one) your legal adviser.
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