Judicial Assessment in the Employment Tribunal

On 3 October 2016, The President of the Employment Tribunals, Judge Brian Doyle, issued Presidential Guidance with an appended protocol on Judicial Assessments.

Judicial assessment is an impartial and confidential assessment of the strengths, weaknesses and risks of the parties’ respective claims by an Employment Judge. At the heart of the protocol is the aim to encourage the parties to resolve their dispute by agreement (although not necessarily in the Judicial Assessment itself) and its statutory basis derives from Rule 3 of the Employment Tribunal’s Rules of Procedure which provides that “A Tribunal shall wherever practicable and appropriate encourage the use by the parties of the services of ACAS, judicial or other mediation, or other means of resolving their dispute by agreement”.

Judicial Assessment will be offered at the first case management hearing and will not generally be offered later in the proceedings.

It is important to note that the process is entirely voluntary and both parties must freely consent before any assessment can be undertaken. Further, no assessment will take place until after the issues have been clarified and formal case management orders have been made. Therefore, even where parties are interested in Judicial Assessment they must still be prepared to identify the issues and discuss case management orders relating to the conduct of the final hearing. It follows that parties that are not in a position to clarify the issues or seek to request more time to provide further information or clarify the claim may lose out on the opportunity.

The protocol encourages parties interested in Judicial Assessment to notify the Tribunal in advance of the case management hearing so that sufficient time can be made available.  Where a Judicial Assessment is expected to take place it is likely that the case management hearing will be listed in person, however the Employment Judge will have the discretion to conduct a Judicial Assessment by telephone or other electronic means. Even if a party does not express an interest before the case management hearing then the Employment Judge may still offer Judicial Assessment in suitable cases.

The protocol makes clear that most cases will be suitable for Judicial Assessment, however provides a non-exhaustive list of factors that may render a case unsuitable, namely where there are multiple claimants who do not all request Judicial Assessment, a party is insolvent, or there are High Court or other proceedings ongoing or they are intimated.

As with Judicial Mediation, the process is strictly confidential, and therefore anything said cannot be referred to in subsequent hearings, including the final hearing, and the Employment Judge conducting the Judicial Assessment will not be involved in the final determination of the case (save for Judicial Mediation).

No doubt Judicial Assessment will be of benefit to cases where one or both parties are not professionally represented as a means to manage the parties expectations and encourage them to be realistic.

One clear advantage is that unlike Judicial Mediation, there is no fee, and the indication given by the Judge may really assist the parties in working towards a settlement or narrowing the issues. However, Judicial Assessment will not be appropriate in every case and the parties, and their representatives, will need to take a view as to its suitability by weighing up all the factors in the case, including, for example, the likely receptiveness of the parties to the Judges views both positive and negative.

You can see a full copy of the Presidential Guidance and the appended Protocol here.

If you wish to discuss this with Kerry, please get in touch.