Tom Gillie, Cloisters
The President of the Employment Tribunals (England and Wales) has issued new guidance setting out a protocol for ‘Judicial Assessment’ of a claim and a response as part of Employment Tribunal proceedings.
A copy of the guidance and protocol is available here: https://www.judiciary.gov.uk/wp-content/uploads/2013/08/presidential-guidance-rule-3-judicial-assessments.pdf
The introduction of the protocol is intended to reflect the overriding objective of the Employment Tribunals to deal with cases justly, speedily and cost effectively. This blog examines the advantages and disadvantages to the parties.
What is Judicial Assessment?
Judicial assessment entails a free appraisal of a claimant’s claim or respondent’s response by an Employment Tribunal judge. The assessment will only be undertaken if all parties and the judge agree to it (note that judicial assessment will not be undertaken where any party is insolvent, or does not consent to it, or where High Court or other proceedings exist or are intimated). It is intended that the judge will indicate the strengths and weaknesses of each party’s case and offer an assessment of their prospects of success. The assessment should take place at the end of a preliminary hearing, after the issues in dispute between the parties have been identified. The assessment is entirely confidential; in particular, the judge at the final hearing of any case will not know the details or outcome of any previous judicial assessment, though the parties may use the assessment in any without prejudice negotiations.
What is the intended outcome of a Judicial Assessment?
A Judicial Assessment’s primary objective is to give parties a provisional idea of the merits and issues of their case. A Judicial Assessment may lead to settlement, which the protocol sets out should be encouraged if parties are receptive to settling a claim. It is also envisaged that a Judicial Assessment may also lead to Judicial Mediation.
How does the new protocol help claimants?
The protocol may be of particular use to unrepresented claimants. The Judicial Assessment cannot be relied on, and is no substitute for, legal advice; however, claimants in person may well find it useful to have an indicative view of the strengths of their claim in order to prepare properly for a final hearing. For example, if a judge is concerned that there is insufficient evidence to support a particular allegation of discrimination, the claimant will have an opportunity to seek further corroborative evidence before the substantive hearing.
A negative Judicial Assessment may also alert a claimant to any insurmountable weaknesses in their claim encouraging them to withdraw and avoid any further adverse cost orders.
However, it is important to underline that judicial assessments put forward a strictly provisional view of a case which is not based on the appraisal of any evidence. Claimants must remember that a pessimistic judicial assessment may not take into account the full evidential strengths of their case. Thus, claimants should be wary of respondents who attempt to rely too heavily on the Judicial Assessment in negotiations at the expense of evidence which is detrimental to them.
Alternatively, a positive Judicial Assessment may strengthen unrepresented claimant’s hands in settlement negotiations: having an expert view of their case put forward in clear and precise terms will provide claimants with an antidote to respondent representatives pushing an overly pessimistic view of the claimant’s prospects of success.
Will the new protocol help respondents?
Judicial assessment may benefit respondents as a means of highlighting the weaknesses in a claim to claimants who are not receiving advice or alternatively are not receiving sufficiently robust advice. This could encourage withdrawal or settlement of weak claims. However, if a claim is obviously weak, respondents have always been able to apply for strike out or a deposit order. It is not clear that Judicial Assessments will add much in relation to obviously weak or flawed claims.
More importantly, it may provide respondents with a “preview” of how a claimant will run their case at the substantive hearing. Often the nuance of a case does not emerge until careful questioning, usually during cross-examination. Learning that information in advance of the substantive hearing will help respondents sharpen their defences.
In appropriate circumstances Judicial Assessment could be a powerful tool for both claimants and respondents. However, it should always be remembered that Judicial Assessment takes place without a full view of the evidence in the case. It is possible that a judge could reach a preliminary view on a case which does not accurately reflect the merits of a claim or a defence once a fuller analysis is undertaken. It follows that consenting to a Judicial Assessment is not without its disadvantages. An overly optimistic assessment of a weak claim or an unduly damning critique of a defence could derail any sensible and pragmatic settlement discussions which would otherwise have taken place.
Finally, in discrimination claims, a preliminary assessment of the merits of a claim goes against the culture of the Employment Tribunal system. That is, judges have been repeatedly warned by the EAT to avoid initial overly pessimistic assessments of discrimination claims when considering strike out applications because discrimination claims are subtle. Only time will tell if judges will be prepared to make robust and clear assessments of discrimination claims at an early stage such that Judicial Assessment becomes a meaningful process.
Cloisters leads the way in Employment Tribunal litigation. Please do not hesitate to call the clerking team (0207 827 4000) if you require any advice or assistance.