Under a new procedure introduced this month, Employment Judges are able to carry out a formal assessment of Tribunal claims. The idea is that the Judge will try to help the parties to agree on a resolution to the case without having to go to a full hearing, saving time and costs in the process.
The parties have to agree to the Judicial Assessment process and, if they do, it will take place at the end of a case management hearing – when the progress and timetable of the case is normally set. By that time, the parties will already have had to set out their claim/defence and consider the evidence which they feel supports their position.
If Judicial Assessment is chosen, the Employment Judge will consider the strengths and weaknesses of all aspects of the case and provide a practical and impartial indication of their views to the parties. If, as a result, the parties settle the claim then the case is closed. If not, the case continues following the case management directions which the Tribunal would already have given.
Formally, this process is supposed to be different from the Judicial Mediation process which the Tribunals have been able to offer in recent years, but is it really the same thing with a different name? There are some important distinctions in that Judicial Mediation costs employers a flat fee of £600 (money which could be saved by opting for the free Judicial Assessment) and is aimed at facilitating a settlement without providing a view on the prospects of success for either party. Timewise, Judicial Mediation may be more onerous too in that the Employment Tribunal normally put aside a whole day to formally mediate, rather than tacking it onto the end of a case management discussion.
Whatever path is chosen by the parties, it is clear that the shift towards parties being encouraged to have sensible settlement discussions continues, with the Tribunal system doing their bit to build on the undoubted success of ACAS early conciliation. There’s often great merit in this, particularly in the flexibility it can offer with settlement terms, avoiding the extreme win/lose options in the Tribunal.
If you’re an employer facing an Employment Tribunal claim or want any further support with HR legal matters, or an individual contemplating litigation, please call us on 01904 520160.