Employment Tribunal judges can now provide their own assessment of the merits of a new claim during the very first stages of the litigation process. This has the potential to save both parties the time and cost of pursuing or defending fruitless claims for several months leading to a final hearing.
Parties to an Employment Tribunal claim often leave the initial case management hearing trying to second guess the judge’s thoughts and opinions. Judicial Assessment is a process which makes these opinions explicit for both parties thereby reducing uncertainty and increasing the prospect of settlement.
The assessment process will be offered during the first case management hearing. This is the first time that the parties or their representatives come before a judge, and the judge will give directions as to the running of the case. This part of the case management hearing will be conducted first and the judge will set deadlines for matters such as disclosure and exchange of witness statements.
If the judge deems the case suitable for Judicial Assessment, and if both parties agree, the judge will then go on to conduct the assessment at the end of the case management hearing. The judge will provide their view on the defendant’s risk of liability, and the range of likely compensation (if any). They will evaluate the strength of each side’s case and, where appropriate, indicate their view on what the likely outcome will be.
It is envisaged that the assessment will encourage parties to settle either at the Judicial Assessment itself, or during settlement negotiations that may follow.
Importantly, the views expressed in the assessment must be kept strictly confidential by both parties. If no settlement is reached and the claim reaches a final hearing, there will be a new judge who will have no prior knowledge of the earlier assessment and will have the benefit of seeing all the relevant documents and hearing from witnesses. As a result it may be that a different outcome is reached at the final hearing.
So should the parties agree to Judicial Assessment? Both sides could feel that not agreeing to the process shows a lack of confidence in their case, which might put them under tactical pressure to try it.