Guidance published to allow judges to provisionally assess employment cases

Guidance has been issued by Judge Brian Doyle, the president of the employment tribunals, for use by judges asked to make a 'judicial assessment' in response to a mutual request by the parties (9-page / 64KB PDF). The guidance is non-binding; however, employment tribunals in England and Wales must "have regard to" it during the judicial assessment process.

The new procedure allows parties to receive an impartial and confidential assessment of the relative strengths, weaknesses and risks of their respective claims by an employment judge. Once the case has been assessed in this way, the idea is that the parties can then go on to resolve their dispute by way of mutual agreement, according to the new guidance.

Rule 3 of the employment tribunal rules requires judges to encourage parties to "resolv[e] their dispute by agreement" before proceeding to tribunal. This has traditionally taken the form of early conciliation through Acas, but the rules allow judges to refer parties to "other means" of dispute resolution where "practicable and appropriate".

Judge Doyle does not expect the new procedure to lead to longer preliminary hearings, or for preliminary hearings to increase in number. It will particularly helpful where one of the parties is not professionally represented at the preliminary hearing, but is expected to be used more widely, he said.

According to the guidance, judicial assessment will only take place after the formalities of the preliminary hearing have concluded, including clarifying the issues and making case management orders. It will be done without evaluating the evidence, and the judge must make it clear to the parties that the result at a full hearing could differ from the judicial assessment, according to the guidance.

If the case proceeds to tribunal, the employment judge who performs the judicial assessment will not be involved in any other aspects of the case, according to the guidance and the outcome of the assessment is confidential and may not be used in later proceedings.

Although judicial assessment is suitable for use in a wide range of cases "of any complexity", the guidance lists some non-exclusive circumstances in which judicial assessment may not be appropriate. These include where there are multiple claimants, not all of whom request judicial assessment; where a party is insolvent; and where High Court proceedings have already begun or are expected to begin.