The President of the Employment Tribunals (England and Wales)
has issued Presidential Guidance on the protocol for "judicial
assessment" in the Employment Tribunal. The guidance came into
force on 3 October 2016. Employment Tribunals must have regard to
the guidance, but they are not bound by it.
Judicial assessment is an unbiased review undertaken by an
employment judge on the merits of the parties' respective
claims (including liability) and/or the potential remedy. This
takes place at an early stage of the proceedings, typically at a
preliminary hearing, and it is a confidential assessment with the
aim of encouraging settlement between the parties. The assessment
can only take place subject to the parties' consent and after
the parties formally identify the issues and the judge gives case
The protocol makes it clear that the parties cannot refer to the
assessment in 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. 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).
It appears that this procedure will be particularly helpful for
litigants in person (a party to a claim without professional
representation) as it will highlight strengths and weaknesses of
their case that they may not otherwise be able to identify. In any
event, this development marks an interesting second small step away
from a purely adversarial system in the Employment Tribunal,
following the introduction of judicial mediation 10 years ago.
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