Judge Brian Doyle, the President of the Employment Tribunals (England and Wales), has issued Presidential Guidance on the protocol for “judicial assessment” in the Employment Tribunal which allows judges to provisionally assess the case before them. The guidance came into force on 3 October 2016. Employment Tribunals must consider the guidance, but the ET is not bound by it.
Judicial assessment is an unbiased review of the relative strengths, weaknesses and risks of the parties' respective claims by an employment judge, who will also give a view on the potential remedy. This assessment takes place at an early stage of the proceedings, typically at a preliminary hearing. It can only take place subject to concluding certain formalities, including clarifying the issues, the judge giving case management orders and the parties presenting a mutual request to have judicial assessment.
This procedure is a confidential assessment with the aim of encouraging settlement between the parties. Rule 3 of the Employment Tribunal Rules requires judges to encourage parties to "resolv[e] their dispute by agreement" before proceeding to the employment tribunal. The early conciliation process through ACAS typically satisfies this. However, the new rules allow judges to refer parties to other forms of dispute resolution where it is "practicable and appropriate" – judicial assessment being one of these alternative forms.
The protocol makes it clear that the parties cannot refer to the assessment in the later stages of the litigation. Therefore, if they do not succeed in settling the claim, the independent judge conducting the final hearing will not be aware of the outcome of the judicial assessment. Further, the procedure takes place without a full view of the evidence in the case, and therefore the preliminary view on the matter may not accurately reflect the merits of the case once another judge undertakes a more detailed analysis. As such, the judge who carries out the assessment will make it clear that this assessment is provisional and the result of a final hearing may well differ. This judge will then normally cease having any involvement in the case (except for day-to-day case management of the proceedings).
While judicial assessment is by no means a substitute for legal advice, it appears that this procedure will be helpful for litigants in person (a party to a claim without professional representation). It will give an indicative view of the strengths and weaknesses of their case that they may not otherwise be able to identify. It might also help those who are represented to have an early steer of how a litigant in person might run their case before the final hearing. This is because, usually, the detail of a case would not develop until the parties are subject to the careful questioning experienced at a substantive hearing. In any event, following the introduction of judicial mediation 10 years ago, this development marks another interesting progression toward a purely adversarial system in the Employment Tribunal.