The President of the Employment Tribunals has issued a protocol for judicial assessment by judges in employment tribunals.

The Facts

Judicial assessment is an informal assessment by a judge typically (but not necessarily) during a preliminary hearing involving a litigant in person. The judge gives a preliminary assessment of the case, the aim being to encourage settlement. The assessment will only take place once the issues have been clarified and case management orders have been made.

If (and only if) the parties agree to the assessment, the employment judge may give a provisional assessment of liability and/or remedy. This is done without the judge evaluating the evidence, and the judge will make it clear that the assessment is provisional, and the result at a full hearing may be different from the provisional assessment. This judge will not then be involved in any further part of the case.

What does this mean for employers

This will be less costly than judicial mediation, and so may be attractive to employers in some cases, particularly where litigants in person are not engaging in settlement discussions. Some unrepresented claimants might be assisted by an early view of an impartial and authoritative judge, which may lead them to take a realistic view of settlement.

Judicial assessment is unlikely to have much attraction for professionally represented claimants.

Employers should only consider judicial assessment where they have a strong case. In deciding whether to agree to judicial assessment, employers should bear in mind the risk that a judge, without the benefit of the full facts, may unexpectedly give a view which supports the claimant's case. This would be likely to make settlement more difficult and costly.

Presidential Guidance and the Judicial Assessment Protocol