Defending an employment claim? Judicial assessment might be worth a shot
The Employment Tribunal has recently introduced a service in which the parties can ask a Judge to review their case and provide an early impartial and confidential assessment of the strengths and weaknesses of their respective claims. The service is free and is worth considering, particularly if your opponent is unrepresented or has an unrealistic view of the merits of their case.
What is judicial assessment?
Judicial assessment is a process whereby an employment Judge reviews the parties’ pleaded cases and provides a provisional assessment of the strengths and weaknesses of each side’s position. The Judge will not hear any evidence and will review the case purely from the papers on the file, which will include the ET1 (claim form) and ET3 (response).
The Judge will not get involved in settlement discussions, and if the case doesn’t settle, a different Judge will hear the case.
Judicial assessment may lead to an early settlement of the proceedings but if it does not facilitate a settlement, the case will continue.
Do both sides have to agree before judicial assessment will take place?
Yes, judicial assessment will only go ahead if all parties agree.
Is it available for all claims?
No. This service is only available where a preliminary hearing for case management has been listed. Case management preliminary hearings are normally only listed in claims that are complicated. During the hearing the Judge will clarify the main issues (and deal with any raised by either party) and will set down a timetable to get the case ready for the final hearing.
It is not yet clear whether judicial assessment is available in cases, which have not been listed for a case management preliminary hearing. If it is not, then ordinary unfair dismissal claims which are typically, not case managed, would be excluded.
How do we apply for judicial assessment?
You must let the tribunal know before the preliminary hearing if you want the Judge to carry out a judicial assessment.
If the claim is listed for a case management preliminary hearing, the tribunal will ask both sides to complete a case management agenda and return it to them in advance of the hearing. This form will ask you to confirm whether or not you are interested in judicial assessment.
If all parties agree and there is sufficient time available, the Judge will undertake the assessment after they have dealt with all other matters.
How long will it take?
Judges will conduct assessments in private after the case management hearing. The process is not expected to last more than two hours and the Judge's findings will be presented immediately afterwards.
Will our position be prejudiced if we use this service and can’t reach agreement with the other side?
No. The Judge will not put any pressure on either side to settle or withdraw their claim or defence. The Judge's decision is not binding and their notes will be removed from the file so they will not influence any other Judge looking at the file. In addition the Judge who conducted the assessment will not hear the case if it proceeds to a final hearing.
Can either side refer to the assessment in correspondence or at the final hearing?
You must keep details of the assessment confidential. This means that you cannot refer to it in open correspondence or at the final hearing. However, you can refer to the Judge’s views without prejudice conversations or correspondence.
What are the advantages of using this service?
If the Judge provides a positive view of the strength of your case, you can use this to try and get a settlement and avoid the time and cost of a tribunal hearing.
The service is likely to be particularly helpful if one side is being difficult or unrealistic in their approach to settlement (a situation that can frequently occur where the claimant is unrepresented). If one side is of the view that their case is stronger than the facts suggest, then the viewpoint of an impartial Judge may inject a dose of realism.
Published: 6 March 2017
Employment Law Update - March 2017
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