Judicial assessment in the employment tribunal

by Laurie Anstis on October 6, 2016

Presidential Guidance has been issued on a new process of  Judicial Assessment in the employment tribunals in England and Wales. This new guidance is applicable from 3 October 2016.

Drawing on the overriding objective and the duty in rule 3 for the tribunal to “encourage the use by the parties of … other means of resolving their disputes by agreement“, this new guidance includes a protocol for employment judges to give “an impartial and confidential assessment … at an early stage in the proceedings, of the strengths, weaknesses and risks of the parties’ respective claims, allegations and contentions“.

Subject to the consent of the parties, this new process would typically take place on a confidential basis at the end of a first case management hearing, at which point: “the Employment Judge may then give an assessment of the liability and/or remedy aspects of the case. It will be made clear that the assessment is provisional and that the Employment Tribunal hearing the case may come to a different view. In conducting the assessment the Employment Judge must make it clear that they are assessing the case on the state of the allegations and not evaluating the evidence, which has not been heard or seen, and assessing provisionally the risks as to liability and, typically, brackets of likely compensation on remedy. The Employment Judge will encourage parties to approach the process with an open mind and to be prepared to enter into the assessment pragmatically and to be receptive and listen to the Employment Judge’s views.”

The guidance also provides that: “The Employment Judge who conducted the Judicial Assessment will normally not then be involved in any part of the proceedings which may entail final determination of the parties’ rights (except that they may conduct any subsequent Judicial Mediation).”

The guidance contains full details of the new scheme and questions and answers for the benefit of the parties. It is available here. It is said that the new process “will be particularly helpful, but not exclusively so, where a party to a claim is not professionally represented at the preliminary hearing”.

(Thanks to barrister Jamie Anderson, from whom I first heard of this. You can read his blogpost on Judicial Assessment here.)