Last month, the employment tribunal introduced a process of judicial assessment. The aim of judicial assessment is to help in the settlement of employment tribunal litigation. It is a process whereby an employment judge will make an initial assessment of the strengths and weaknesses of the parties’ cases with a view to helping them to settle the dispute. 

Both parties must freely consent to the judicial assessment, which will take place as a “bolt on” to a standard case management/preliminary hearing. It is our understanding that judicial assessment has to take place at the first of these hearings and will not generally be offered later on in the proceedings. 

What you need to know about judicial assessment

The assessment is made by an employment judge. He or she will use legal and factual points as clarified in the case management hearing but no evidence will be heard. 

Because the process is confidential, the parties must agree that the views expressed by the employment judge will not be disclosed to third parties – other than advisers. They must also agree that, should the case not be settled, the judge’s views must not be mentioned in subsequent proceedings. However, the parties are at liberty to use the judge’s comments in any ‘without prejudice’ discussions. 

The judge who conducts judicial assessment will not normally be involved in any further part of the proceedings. The assessment can take place via telephone or in person; the latter is more likely if in-depth discussions are anticipated.

Some cases, such as straightforward unfair dismissal or wages claims, are not routinely listed for a case management/preliminary hearing.  As yet, it is not clear whether judicial assessment will be available in these instances.

Judicial assessment is likely to be particularly helpful where one party feels that the other's case is weak or of low value, or where the claim or response has been issued without the benefit of legal advice.

The first step is for the parties to liaise to see whether they both agree to judicial assessment. If so, they should let the tribunal know that this is how they would like to move forward. 

Where the claimant is represented by a lawyer, it might be prudent for the lawyer to bring a draft settlement agreement to the hearing.  If the claimant is not represented, an ACAS officer could be asked to stand by to conciliate. A binding settlement can be reached through ACAS over the phone or using a COT3 without the claimant having to take independent legal advice on the settlement terms.