Wed 12 Oct 2016

New voluntary judicial assessment process in England and Wales but not Scotland

A few years ago I appeared in an English Tribunal brought by several party litigants claiming a breach of the collective consultation rules on redundancy against my employer client. The Tribunal pre-read the witness statements and after the first day of evidence the Employment Judge took the unusual step of having an informal discussion with the parties. 

The Judge gave his preliminary view on what he believed to be certain weaknesses in both parties' cases. As a result the parties contacted ACAS and entered into a conciliated settlement. The employer was happy because the agreed settlement was less than the offer it had made but which had been rejected prior to the hearing commencing. It avoided a further six days' legal costs as well as possible adverse publicity in the event of an unfavourable Judgment.

The above case came to mind when I read that the President of the Employment Tribunals in England and Wales had issued Guidance that came into force on 3 October.  This provides for a new voluntary Judicial Assessment Process.

In summary, if parties agree, at an early stage in the Employment Tribunal process (normally at the first case management Preliminary Hearing) the parties can agree to an Employment Judge giving a provisional view on the merits and potential value of the claim. This would be based entirely on the paperwork without the benefit of hearing any evidence or seeing any witness statements.  If parties agree, then whatever is said would be treated on a "without prejudice" basis and could not be founded upon in any proceedings at a later date. The Employment Judge requires to act impartially. The Guidance suggests that the process is most likely to be of benefit where one or both sides are unrepresented albeit that does not require to be the case.

The primary aim of this process appears to be to try and promote the early, cost effective, settlement of claims.

Employment Judges are to report on the number of claims where this process is used. It will be interesting to see how successful this initiative will be in achieving its objectives.

Parties can, of course, avoid using the process because it is voluntary. If a Judge participates in such a Judicial Assessment it is almost inevitable that he or she could not be involved in considering the claim at any later merits hearing. The Guidance does provide that such Judges would not be precluded from participating in purely case management hearings or a subsequent Judicial Mediation.

The new Presidential Guidance only applies in England and Wales. No similar Guidance has been drafted by the Scottish President. It is understood that the position in Scotland may be reviewed after considering how the new process operates in England and Wales and after discussion with the local Tribunal Users' groups. This highlights yet again the differences that have to be considered in relation to the procedures adopted in the respective Employment Tribunals in England and Scotland, even where the substantive law is not a devolved issue. With the pending devolution and reform of the administration of the Employment Tribunal system in Scotland this may prove to be yet another example where the procedural differences in dealing with similar types of employment claims north and south of the border may increase rather than diminish.

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