Come on, Judge, tell us what you’re thinking

Parties and lawyers in employment tribunal cases often scrutinise the Employment Judge's comments and reactions at preliminary hearings with a view to getting an early indication as to which way the Judge might be leaning. Now there is a means by which parties can get an assessment from a Judge at an early stage in proceedings of the strengths, weaknesses and risks of the parties' respective claims.

Here is how it will work. The parties arrive at the first case management hearing of the case. Ideally the parties will have informed the Tribunal in advance if they want Judicial Assessment, but there is no requirement to do so. The Judge at the case management hearing will clarify the issues between the parties and provide case management orders in the usual way, but will then – if both parties consent (and there is no obligation on the parties to do so) – go on to give a provisional assessment of the merits of the case, including (when appropriate) an indication of the possible outcome of the case. Because the assessment comes early in the proceedings, it will only be based on the allegations that both parties have made, not on any evaluation of evidence, and the Judge will make that clear. The aim is to get the parties to think about what is at stake, to narrow the issues and to encourage settlement.

It is a confidential process, so it cannot be referred to later in proceedings, save in without prejudice discussions. Whilst the Judge might take notes, those notes will not go on the case file, so they will not be accessible to other Judges who deal with proceedings at a later stage. And the Judge that gives the assessment will not normally be involved in later proceedings, not at least any that result in final determination of the parties' rights.

Judicial Assessment does not replace Judicial Mediation: the latter continues to be available too, and the two processes do slightly different things. Assessment is essentially indicative; mediation is facilitative. And unlike Judicial Mediation, there is no fee for Judicial Assessment.

Is there anything to lose? Yes, potentially. The Judge's indication is not based on any assessment of the evidence, so there is no guarantee that the indication that is given will accurately reflect the merits, and if a misleading indication of merits is given, that could have an adverse impact on the ability of the parties to reach a sensible settlement. So far from assist in settlement, it could possibly have the opposite effect. Whilst the process may be suitable for some cases, it will not be suitable for all.

The Judicial Assessment process is set out in Presidential Guidance – Rule 3 – Protocol on Judicial Assessments, which can be found here. It was issued on 3 October 2016.