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Particularly adept when it comes to advising on technical and complex employment law problems.

Judicial Assessment – A Mixed Bag

This week has seen new Presidential Guidance issued in respect of ‘Judicial Assessment’.

In summary, judicial assessment is an Employment Judge providing the parties with an impartial and confidential assessment by an Employment Judge at an early stage in the proceedings of the strengths, weaknesses and risks of the parties respective claims, allegations and contentions. Such an assessment will generally be offered at the first case management hearing in the proceedings and parties are encouraged to give prior thought as to whether they will be seeking such an assessment.

The Guidance itself is clearly written and continues the style that has been adopted under President Doyle of being a well thought through and thorough document.

My initial view of the Guidance is that it is very much a mixed bag that will be largely dependent upon the individual Judge that you are before.

On the one hand, I have sat in too many case management discussions where bad points have been taken and it has been self-evident that at a full hearing the point really will not make sense. In those circumstances, some advocates (myself included) attempt to persuade an Employment Judge to express an initial view on such a point. Some Judges do, some Judges don’t. On this basis, the protocol may be a welcome opportunity to deal with these situations.

On the other hand, I can foresee risks in the use of Judicial Assessment. In particular:

  • · It is essential that a Judge hears from both parties before expressing a view. Sadly, during case management or full hearings what can happen in respect of a particular point is that a Judge sees a point from the papers or from hearing from one side and expresses a view before the other party has been called upon to comment. In seated advocacy, this practice encourages parties to interrupt or talk over each other because they want to make sure they are heard before the Judge adjudicates. Also, a Judge who expresses a view without calling on a party is more likely to receive an intemperate response. It may seem obvious, but parties that witness a Judge weighing competing points up are more likely to give weight to the view expressed by the Judge. The closer to the approach taken in Judicial Mediation, though time consuming, the better. (n.b. Discussing seated advocacy like this may seem like a niche point, but I really would be interested to see whether there was an academic prepared to do some sort of study in this area. I think it is ripe for a study.)
  • · Over the years, there has been much debate about the use of deposit orders within Employment Tribunals. People like to talk tough in this area, for example when the deposit order limit was increased to £1000. I have seen many discussion documents which talk of ‘greater use of deposit orders’. Leaving the rhetoric to one side, it is still remarkably difficult (and sometimes too expensive) to get a deposit order. I would have no difficulty in seeing a slight increase in their use when genuinely bad points are taken, but I struggle to see how this would fit in with a Judge conducting Judicial Assessment. If a Judicial Assessment is ‘without prejudice’ as the Guidance indicates then it would require a separate hearing before a separate Judge to get a deposit ordered.
  • · Too frequently, pleadings in the Employment Tribunal are poor. Surprisingly, in my view this applies just as much to represented and unrepresented parties. The Judge is then left in the position of having to decide whether to point out to a party that there is a clear claim or defence that has been missed. Whether this is the proper role of an Employment Judge is a much wider debate than I have time for in this piece, but it is fair to say that judicial approach in this area is inconsistent. Given that judicial assessment is on a ‘without prejudice’ basis, I can foresee real problems in a situation where the line is crossed and the Judge has descended into the arena and suggested to the party the route through which their claim or defence can be improved. On the flip side, how is it possible for a Judge who does not wish to cross that line to legitimately explore strengths and weaknesses without pointing out to the party the claim or defence that could be achieved either ‘because it is what you meant all along’ or through amendment? As I write this, my sympathies lie with all parties. Firstly, the party in the wrong – either they or their representative are wading into an arena they don’t understand. Secondly, the party on the receiving end – they are at risk of facing a better claim or defence due to the actions of a third party. Thirdly, the Judge – trying to stay on the right side of the line whilst also ensuring the parties are on an equal footing.

On this basis, I think that we should all work hard to give Judicial Assessment a go, but monitor it on a sensible basis. It is essential that success is not judged simply on the basis that X number of cases have been subject to judicial assessment and X number of those cases proceeded to settle. As a matter of public interest, we should no longer treat the mere fact of settlement as a success. Yet, there is evidence that we do already. If we go too far down this road, then someone settling a good claim of £50,000 for £1000 is chalked up as a success as is a Respondent overpaying in settlement. That isn’t the public interest.

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