Requesting Judicial Assessment of merits at preliminary hearings

The Employment Tribunals Rules of Procedure provide that a Tribunal shall wherever practicable and appropriate encourage the use by the parties of the service of ACAS, judicial or other mediation, or other means of resolving their disputes by agreement.

In October 2016 the President of the Employment Tribunals in England and Wales issued Presidential Guidance – Protocol on Judicial Assessments. The Protocol creates a confidential process whereby an Employment Judge can offer an earlier assessment of the strengths and weaknesses of the parties’ respective cases.

Judicial assessment involves evaluating the strength of the parties’ cases. Employment Judges will use their skill and experience in doing this, whilst remaining wholly impartial. Whilst recognising that evidence will not have been heard, Employment Judges may, when appropriate, give indications about the possible outcome of the case.

Judicial assessment is not the same as judicial mediation. An outcome of judicial assessment may be that a case is listed for judicial mediation. Judicial assessment is indicative in nature and will involve a practical
assessment of the case by the Employment Judge. Judicial Mediation is facilitative; has the aim of assisting the parties to achieve a resolution of the issues between them without giving any indication of prospects of success; and is usually allocated a full day of the Employment Tribunal’s time.

Key features of judicial assessment:

• It is voluntary.
• It will generally be offered at the first case management preliminary hearing.
• It must only take place after the issues in the case have been clarified and case management orders have been made.
• If the parties want judicial assessment they are encouraged to inform the tribunal in advance.
• The process is confidential and the parties will be required to agree to this before judicial assessment occurs.
• Anything said in judicial assessment can be used in subsequent without prejudice discussions.
• The process will be conducted with a view to assisting eventual settlement.
• If the parties decide they wish to explore settlement, this will be encouraged, although care will be taken to ensure unrepresented parties are advised that they should take time to reflect upon any offer.
• The Employment Judge who conducts judicial assessment will normally not then be involved in any part of the proceedings which entails final determination of the parties’ rights.

If intending to make use of judicial assessment, consider taking the following steps by way of preparation:

• Letting the Tribunal know will help the tribunal allocate resources appropriately.
• Letting the other side know will hopefully mean that the other side would be more willing to engage in the judicial assessment.
• Have clear pleadings and a clear list of issues.
• If you consider that settlement on the day is a possibility:
  • having a draft settlement agreement ready;
  • if intending to use ACAS, having COT3 wording available.