One small step for the adversarial system, one giant leap for litigants in person

The President of the Employment Tribunals (England and Wales) has issued Presidential Guidance on the protocol for “judicial assessment” in the Employment Tribunal. The guidance came into force on 3 October 2016. Employment Tribunals must have regard to the guidance, but they are not bound by it.
Judicial assessment is an unbiased review undertaken by an employment judge on the merits of the parties’ respective claims (including liability) and/or the potential remedy. This takes place at an early stage of the proceedings, typically at a preliminary hearing, and it is a confidential assessment with the aim of encouraging settlement between the parties. The assessment can only take place subject to the parties’ consent and after the parties formally identify the issues and the judge gives case management orders.
The protocol makes it clear that the parties cannot refer to the assessment in later stages of the litigation. Therefore, if they do not succeed in settling the claim, the independent judge conducting the final hearing will not be aware of the outcome of the judicial assessment. As such, the judge who carries out the assessment will make it clear that this assessment is provisional and the result of a final hearing may well differ. This judge will then normally cease having any involvement in the case (except for day-to-day case management of the proceedings).
It appears that this procedure will be particularly helpful for litigants in person (a party to a claim without professional representation) as it will highlight strengths and weaknesses of their case that they may not otherwise be able to identify. In any event, this development marks an interesting second small step away from a purely adversarial system in the Employment Tribunal, following the introduction of judicial mediation 10 years ago.

Helena Rozman

About Helena Rozman

Helena has experience in acting for both employees and employers covering both contentious and non-contentious work. Helena's experience includes defending Employment Tribunal claims and engaging in settlement negotiations; advising clients on complex disciplinary matters, exit strategies and large restructuring exercises, including TUPE and redundancy; co-ordinating and responding to data subject access requests; advising on the employment implications on business and asset purchases and outsourcing arrangements; project managing and advising clients on multi-jurisdictional projects with our international offices; drafting settlement agreements for exiting employees; advising on the employment aspects of corporate transactions and undertaking due diligence; and reviewing contracts, company handbooks and policies.

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