October 2016

A new feature has been introduced in the Employment Tribunals. The process of “Judicial Assessment” has been given official sanction by the President of ETs (England and Wales), Judge Brian Doyle. It should result in the withdrawal of cases which are hopeless, once they are scrutinised by an impartial expert (the Employment Judge) applying the relevant principles of employment law.

Judicial assessment is a process in which an Employment Judge (EJ) evaluates the strength and weaknesses of each party’s case, and may then draw conclusions as to who will win on which aspects of the claim, and what the likely remedies will be.

It will take place at a case management hearing - usually the first one to take place in the proceedings. The drill will be that the issues will be determined in what has become the traditional way, followed by formal case management orders as to deadlines for disclosure and the like. If the parties consent, the EJ will then (on an impartial basis) indicate the strength of each party’s case, and may go on to predict the likely result. 

Prior to the case management hearing, the parties will be able, by ticking a box, to indicate their interest in judicial assessment. But their failure to do so will not prevent the EJ from explaining the process and asking if they consent. It appears that the focus will be on cases where there is a litigant in person (or at any rate one without professional representation). However, that will not prevent cases where both parties are represented from being subject to the process, provided that they both consent.

Judicial assessment is part of the ADR family, but it is distinct from judicial mediation. Mediation is also under the aegis of an EJ, but a day or more is set aside, and the aim is to facilitate a resolution by exploring the requirements of the parties and any common ground. Judicial assessment is a much shorter process which takes place as part of the case management hearing and is aimed at informing the parties of the judgment of a skilled and experienced outsider about the prospects of success, including remedies. It is, in the jargon "evaluative", whereas judicial mediation is "facilitative".

The framework indicated by Judge Doyle contains certain crucial safeguards

•  the assessment will only be embarked upon with the consent of the parties, with no pressure involved
•  a properly conducted case management process should take place before the assessment takes place
•  the indications of the EJ are confidential to the parties and their legal advisers, and cannot be attributed in any subsequent proceedings, although they can be referred to in without prejudice discussions
•  EJs are exhorted to ensure that unrepresented parties are not rushed into settlement without time to reflect on any offer
•  the EJ who undertakes the assessment will not subsequently be involved in proceedings entailing final determination of the parties’ rights, although they may deal with case management matters

What are the pros and cons of this new development?

First, it is worth stressing that tribunal hearings are inevitably costly and stressful. Any procedure which avoids an unnecessary hearing is to be welcomed. Judicial assessment has the potential to help both claimants and respondents to recognise when their expectations are unrealistic and settle with dignity.

Second, this Guidance should be distinguished from the ad hoc encouragement to settle which has long been a part of case management discussions. Apparently some tribunal users see it as merely an endorsement of long standing practice at certain centres. The safeguards set out in the bullet points above are crucial, however, and it is important that they are honoured, or there will be a flurry of cases alleging pressure and bias from litigants in person.

A different problem is identified by Jamie Anderson of counsel in his blog. He suggests that it will cause difficulties for EJs in treading the line between impartiality and identification of strengths and weaknesses. In particular, he foresees a situation where EJs are tempted to descend into the arena and suggest claims or defences which a party has not thought of. The answer to this thoughtful point is that it is a dilemma which EJs have faced at case management hearings generally. The primary task at such a preliminary hearing is, after all, to define the issues, and the Guidance sets out that this needs to be done first. So once one examines the problem, it is there in the status quo, as well as in the new process.

Is this complicated at all by the confidentiality which is to surround the assessment process? Surely not. The point will be whether the “new” claim or response was either

1. really an implicit part of the original pleadings; or
2. has emerged as a result of a properly incorporated amendment.

It should not be about how (a) or (b) came about, and so confidentiality ought not to enter the equation. It is also worth pointing out that clarification of the pleadings is surely in accordance with the overriding objective

Overall, I would suggest that the disciplined framework for judicial assessment set out in the Guidance and Protocol is to be welcomed. The direct benefits should certainly be felt by those who have strong claims or defences. They will also be felt by those who decide to abandon hopeless cases in the face of an authoritative impartial indication, however unwelcome that indication may appear to be at the time.