Are such assessments likely to add anything to the employment lawyer’s toolkit for resolving disputes? Or are they likely to become another footnote in the history of tribunal practice, initially heralded but then largely ignored in the same way as protected conversations?
Despite the laudable aims of the new process, there are features of it that suggest it will be used in relatively few cases.
When should a request for judicial assessment be made?
A judicial assessment will only take place if the parties consent. That consent must therefore be communicated to the tribunal in some form.
The protocol that accompanies the presidential guidance suggests that there will be a dedicated box on the standard-form case management agenda for a party to express its interest in obtaining a judicial assessment. Are the parties likely to take advantage of this invitation?
A judicial assessment will probably be requested in one of three circumstances, where the party making the request:
- Believes they are in a position of strength.
- Believes they are in a position of weakness.
- Would like to settle regardless.
In any of these cases, making the request will reveal that party’s position to the other to some extent. I doubt that a party would want to show its hand so early in the litigation. In a typical case there would need to be a recognition by at least one party that a claim or argument is weak. There will be a natural reluctance to do this, especially where that party is represented.
When will a judicial assessment be made?
The guidance and accompanying protocol suggest that a judicial assessment will be made as part of a case management preliminary hearing once the issues and case management directions have been dealt with. There does not appear to be any mechanism for a judicial assessment to be conducted in writing through correspondence between the parties and tribunal. The need to preserve confidentiality militates against recording the outcome of an assessment in writing (as to which, see below).
This throws up its own problem. The greater the factual and legal complexity of a case, the less suited it is to judicial assessment. However, preliminary hearings are not ordinarily listed in straightforward claims, where standard written directions are issued to the parties. It would seem there is a more limited opportunity for undertaking a judicial assessment in the very types of claim to which the process would be more suited.
On what will an assessment be made?
Does the procedure allow a tribunal to make an assessment only on the entire proceedings, or on individual claims within those proceedings, or on individual issues within those claims? The guidance and protocol does not answer this question. Hopefully employment judges will have the discretion to take a bespoke approach to the scope of their assessments.
What material will be available to the judge for the purpose of a judicial assessment?
In short, very little, which may render a judicial assessment of little use in most cases.
The protocol requires an employment judge to explain that they are assessing the case on the state of the allegations and not evaluating the evidence. However, the true merits of a claim or response are rarely revealed by the ET1 or ET3, other than in the clearest of cases.
Will an employment judge be prepared to express themselves in strong terms (or at least terms strong enough to encourage settlement) when they know that the case may take on a different complexion at trial? They may be prepared to do so where a claim or issue is unarguable on the law, but I doubt they will where a claim turns to any extent on disputed evidence. The overriding objective requires employment judges to promote proportionality and the saving of expense, but it also requires them to do justice between the parties. I anticipate that an employment judge will be reluctant to state that a party is likely to lose a claim or issue in the absence of any evidence.
For what purposes can the judicial assessment be used?
The outcome of a judicial assessment is confidential to the parties and may only be disclosed to their legal advisers for the purposes of further without prejudice discussions or as part of a subsequent judicial mediation. If the parties do not expressly agree to this condition, the judicial assessment will not take place.
This means that the judicial assessment cannot be used at a later hearing for any purpose. This makes obvious sense when it comes to the tribunal’s assessment of liability and remedy. Why should they be influenced by the view of an earlier employment judge who did not have the benefit of the evidence as they had?
However, there seems less of a rationale for excluding their use on the question of costs. If a party had been warned that their claim was likely to fail as part of a judicial assessment, why should a tribunal not take account of that fact in deciding whether an order for costs should be made against that party? It would then be a matter for the tribunal to decide what weight it places on that factor. If the parties were allowed to rely on a judicial assessment as a form of “deposit-lite”, I anticipate the take up of the procedure would be all the greater.
Judicial assessments seem most suited to situations on which an unrepresented party is unable to see the weakness of their own claim or where one claim of many is weak and the proceedings could be managed more efficiently by disposing of it. It may be these situations which the new procedure is primarily geared towards. But if that is so, do not expect to see them become an indispensable part of the employment tribunal process.