Why is this case being allowed to continue and can’t we do anything to stop it? This question is often asked by employers faced with Employment Tribunal claims brought by employees, which seem to lack any merit. Employees also are sometimes left scratching their heads as to why an employer doesn’t settle a cast-iron case. New guidance for Employment Tribunals describes what can be done to speed up resolution of claims in appropriate cases. The President of the Employment Tribunals, Judge Brian Doyle, recently released guidance on a new Protocol for Judicial Assessment in Employment Tribunal claims, which took effect on 3 October 2016.
The idea of the new protocol is to further the overriding objective in helping to ensure that cases are dealt with fairly, justly and in a proportionate manner. Put simply, the idea is to save time and costs. The statutory basis for judicial assessment is Rule 3 of the Employment Tribunals Rules of Procedure 2013, which provides: “A Tribunal shall wherever practicable and appropriate encourage the use by the parties of the services of Acas, judicial or other mediation, or other means of resolving their disputes by agreement.”
Below, we set out how this new protocol will work and the likely effect it will have on the management of Employment Tribunal cases.
What is judicial assessment?
Judicial assessment is a process whereby an employment judge can consider a submitted claim and provide an impartial and confidential assessment on the strengths and weaknesses of that claim. The protocol sets out that this process is designed to take place at the end of the first case management hearing, once the issues have been clarified to a sufficient extent and provided that both parties agree to it.
It is important to note that the assessment given is provisional and based on the state of the allegations at that time. In providing the assessment, the employment judge will not have evaluated any evidence that would be considered if the matter were to progress to final hearing.
When is judicial assessment available?
The protocol indicates that, as long as both parties agree to undergo judicial assessment, it will be available in most tribunal cases. Cases that could be considered unsuitable include, for example, those where there are multiple claimants and not all want to be involved in in assessment, where a party is insolvent or where other proceedings exist. This is not an exhaustive list.
Any party wishing to have judicial assessment should inform the tribunal, preferably ahead of the first case management hearing. This can be done by way of ticking a box on the case management agenda, which will be updated to include the option of judicial assessment. In the event that no interest is expressed and the case is suitable, the employment judge conducting the preliminary hearing can suggest judicial assessment as an available option.
How does judicial assessment work?
Once the parties have indicated that they would like to undergo judicial assessment and assuming the case is suitable, the case management hearing will proceed as normal. It is worth noting however that the hearing may well be listed in person where a judicial assessment is required, although the protocol does allow an employment judge the discretion to conduct a judicial assessment by telephone. The Protocol does not anticipate that the use of this facility will lead to longer preliminary hearings.
Assuming the issues in the case have been clarified, the employment judge can then evaluate the strength of the parties’ case and, if appropriate, provide an indication about the possible outcome and the likely remedy.
This is a confidential assessment and not for disclosure to anyone other than the parties and their legal representatives. The purpose is to try and assist eventual settlement and the protocol is clear that time will be built in to allow for this. However, the protocol also states that immediate settlement is not the primary purpose of judicial assessment. One of the other possible outcomes of assessment is that the case is listed for judicial mediation.
Additionally, while the employment judge conducting the assessment may be involved in the day-to-day management of proceedings, he or she will not be involved in any part of the proceedings which entails final determination of the parties’ rights. This does not preclude the same judge from conducting judicial mediation, if so required.
In the event that judicial assessment does result in settlement, this will be recorded in the usual way, i.e. by a COT3 agreement or other formal settlement agreement between the parties, a consent judgment by the tribunal and/or conditional withdrawal and dismissal of the claim.
It is clear how such an assessment could be used in settlement negotiations between the parties. However, the guidance provided at judicial assessment must be viewed with caution, in that there will have been no formal evaluation of the evidence involved in arriving at the conclusion.
From a claimant solicitor’s perspective, it may be particularly useful when the case appears to be relatively simple and largely in the claimant’s favour. A judicial assessment to that effect would help encourage the respondent to settle without incurring additional time and expense. Conversely, any weaknesses may be exposed which would add weight to respondent’s argument and may put pressure on the claimant to settle. Clearly, consideration has to be given to the individuals involved and whether they are likely to be affected by any determination provided.
Overall, it may be that this has very little practical effect on the progression of cases through the tribunal. It is arguable that cases that are clear enough to allow an outcome to be suggested at such an early stage – and without review of the evidence – would likely be settled in any event. This is likely to be the case particularly when legal representatives are appointed by both parties.
A preliminary indication therefore is that the availability of judicial assessment will be of particular assistance to a lay client without representation. The argument is that this may help a lay client understand the challenges faced and the strength of their claim, and thus help them to adjust their expectations before too much further expense has been incurred. This is a suggestion that is reinforced by Judge Doyle in his Presidential Guidance.
Only time will tell as to whether parties to proceedings take up the offer of judicial assessment. The protocol requests that each Employment Tribunal region keeps a record of the number conducted, together with a record of settlements in cases where it has been used. This information will be used to provide a monthly report to the president as to the use and effectiveness of this facility.
The Presidential Guidance, Protocol for Judicial Assessment and Questions and Answers for the Parties can be found here.
For more information on any of the issues raised in this article, contact the Employment law team.