On 3rd October 2016, Judge Brian Doyle, the President of the Employment Tribunals, issued presidential guidance as to a new mechanism for resolving disputes before the Employment Tribunal.
Essentially, the new procedure which is known as a Judicial Assessment, is an opportunity for an Employment Judge to have a without prejudice discussion with the parties about the merits of each of their cases, with a view to facilitating a settlement between them.
Judicial Assessments will only take place when both parties agree, and will usually take place at the initial case management hearing. A Judge conducting a Judicial Assessment will make clear to the parties that he/she has not heard the evidence and if the case proceeds to a final hearing, a different outcome is possible depending upon how the evidence plays out. The Judge will then give a view on the merits of the case and – if appropriate – the remedy.
Should the case settle, an agreement may be recorded in various ways such as a consent order, or a COT3 through ACAS.
If the case does not settle, the Judge who has conducted the Judicial Assessment will have nothing further to do with the case and will ensure that his/her notes of the Judicial Assessment are not left on the Tribunal file. Evidence of the discussions between the Judge and the parties is then inadmissible in subsequent hearings.
It is envisaged that the majority of cases will be amenable to the new procedure. However, the guidance identifies that the following types of cases are unlikely to be suitable:
• there are multiple Claimants and not all of them request a Judicial Assessment
• one (or more) party is insolvent
• High Court or other proceedings exist or are intimated
The idea behind Judicial Assessments is that it may allow parties to settle their disputes more quickly and cost effectively than the case proceeding to a final hearing. It is likely to be particularly useful where one party is a litigant in person – as is often the case in Employment Tribunal Proceedings.
The Judicial Assessment procedure has considerable similarity with hearings in divorce proceedings known as Financial Dispute Resolution hearings. In FDR hearings, parties in divorce proceedings where financial issues are contested are given the opportunity for a Judge to give an assessment as to the merits of their respective cases and what an appropriate means of settlement is. As in Judicial Assessments, anything the parties say at an FDR is confidential and Judges conducting an FDR will have nothing further to do with the case if it does not settle. John Leadbeater, family law partner at Woodfines says : “FDR’s have been a feature in family law cases for many years now, with the objective to encourage settlement at as early a stage as possible. Often the formality of a court setting and hearing a Judge assess the merits of a case brings home to the parties the strengths and weaknesses of their case. FDR hearings are useful
since many cases will settle at this stage leading to a significant saving in both time and costs. A similar process in employment law will undoubtedly lead to a number of cases being disposed of in a cheaper and quicker manner.”