Judicial Assessments

What are they

Judicial Assessments have been introduced as a different mechanism to assist parties in reaching a settlement without the need for a full tribunal hearing.  This process does not replace judicial mediation but instead acts as a springboard to settlement discussions.

The process is conducted by an Employment Judge on a without prejudice basis whereby the judge assesses the strengths and weaknesses of the claims and allegations that are made. The Employment Judge will then indicate how strong both parties case are and what the outcome is likely to be regarding liability and the remedy. Any views or comments made by the Employment Judge must remain confidential and cannot be disclosed to third parties (save for legal advisors). However, parties are  permitted to make reference to comments made during judicial assessments in without prejudice discussions.

It is important to note that this is not an evaluation of evidence and is merely guidance to assist parties in reaching a settlement.

Costs

There is no fee for parties who wish to have a judicial assessment; you merely have to indicate that this is something you are interested in doing prior to the Case Management Hearing (CMH).

Criteria

Parties will be offered the option to have a judicial assessment after the first CMH once all the issues have been identified, although if this is of interest it should be indicated prior to the hearing. If the other party consents the judicial assessment will take place immediately following the CMH.

In cases where you ordinarily don’t have a CMH (ordinary unfair dismissal and wages claims) no guidance has yet been issued as to whether judicial assessment will be available.

In addition to the consent of both parties, judicial assessment will only be appropriate in the following circumstances:

  • There is only one claimant;
  • All parties are solvent; and
  • No high court or other proceedings exist or are intimated

The Judge that conducts the judicial assessment will not be involved in any part of the final hearing.

Judicial assessment is potentially a tool that can save money and time and also assist in preventing any vexatious claims that are bought. Judicial assessments may persuade parties to look at settlement at an early stage in the proceedings especially if an Employment Judge takes the view that their prospects of success are poor.

No evidence will be heard by an Employment Judge during a judicial assessment. A judge will form an opinion based on the parties ET1 and Grounds of Resistance together with any further points clarified at the CMH.  However, it is difficult to see how a judge can form an opinion over a discrimination claim without hearing any evidence.  It will now become even more important for employers to set out any defences to claims clearly in the ET3.

We suspect that employers or claimants that believe they have a strong case will want to take part in this process in the hope that the judge will reinforce the fact that they are likely to succeed. This in turn will put them in a better position to dictate any settlement terms.

Judicial assessment is not binding or based on evidence but it will give parties a starting point for settlement talks which we expect will lead to more cases settling . However beware that the judge has not seen the evidence and therefore if the case proceeded to trial the outcome might be different.

For further information on any of the above, please contact the Devonshires Employment Team.

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