Taking evidence from abroad – implications for employers

In April 2022, the Presidents of the Employment Tribunals in England and Wales and in Scotland issued joint guidance on the giving of video or telephone evidence from abroad.

Tribunals are now routinely conducted via video conference, the practice having been introduced as a response to the pandemic and lockdowns, and while there is an aspiration for more cases to be heard in person, it is likely that a significant proportion of cases will continue to be dealt with remotely.

While it would seem most logical that evidence from witnesses overseas should be heard remotely, there are legal issues to contend with.  The Upper Tribunal of the UK’s Immigration courts held, in the 2021 case of Agbabiaka, that it is necessary for a UK tribunal to ask a foreign state for permission for a person to give oral evidence in the UK from within its territory.

The new guidance states that a party wishing to rely on such evidence must notify the Employment Tribunal (“ET”) with the prescribed details.  HMCTS will then contact the Taking of Evidence Unit at the Foreign, Commonwealth and Development Office who will either:

• confirm that the state in question has no objection to evidence being given orally from within its territory; or
• will make an enquiry of the state via the British Embassy or British High Commission in that country (and HMCTS will pay any fee due).

Implications for claims in the Employment Tribunal

Not surprisingly, where such enquiries are needed, there is a real risk of delay.  The guidance warns of it potentially taking months for a response to received, and this will have an inevitable effect on case management and the timing of any hearing.  Where permission is either delayed or refused outright, the ET 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.

In any event, where employers have claims with potential witnesses abroad, it is important to consider these issues at a very early stage with your legal team in order to avoid unnecessary delays.  Consideration will need to be given to whether any alternatives are possible and what any plan of action might look like.

Further issues from an immigration perspective

On the face of it, one option would be for the witness to travel to the UK to provide their evidence in person.

However, depending on the individual’s immigration status and/or nationality, there are a range of matters that would need to be considered to ensure this complies with the UK Immigration Rules.

Where an individual has pre-existing immigration permission, it would be necessary to consider whether the visa validity is sufficient to cover the duration of the trip.  If not, does it make sense to make a new application from overseas or perhaps submit an extension application once in the UK?  In either event, understanding whether the individual is eligible, the associated costs and processing times will be important factors to think about from the outset.

Beyond this, it may be necessary to consider whether that visa remains valid.  For example, has Indefinite Leave to Remain lapsed owing to a lengthy absence from the UK?  Or, if a sponsored worker, will the worker continue to meet the criteria for the visa e.g. are they receiving a salary in-line with the thresholds for the time spent in the UK?

The position for individuals who do not already hold immigration permission can be more complex as this will involve determining whether giving evidence at a hearing is a permissible activity for the purposes of the Immigration Rules.

The visitor rules are deliberately broad and place the emphasis on an individual ensuring they remain compliant with the limitations on their activities.  The rules do provide for an individual to enter as a visitor where summoned to give evidence in person by a UK court.  What is less clear is the position where there is no formal summons, and whether this would be a breach of the rules.

Assuming the individual meets the visitor rules, understanding whether they need to obtain a visa prior to travelling with be dependent on their nationality.  For “visa nationals” it will be necessary to factor in the time taken to gather the relevant documents to support the visa application as well as processing times.

For employers, there will no doubt be a temptation to maximise the value of your employee’s time spent in the UK and allow them to carry out work related activities when they are here.   Whilst this may be possible, having the proper policies and systems in place to assess these activities ahead of travel will be crucial to avoiding either employees or the business falling foul of your immigration compliance obligations.