What Can Be Done About Serial Litigants

The recent Employment Appeal Tribunal case of Her Majesty’s Attorney General v David Taherishone a spotlight on vexatious litigants who submit excessive Employment Tribunal claims. After unsuccessfully applying to numerous companies for jobs he submitted over forty Tribunal cases in eight years which had been dismissed by the Tribunal with no prospect of success or he decided to withdraw. On balance Mr Taheri settled some of the claims. This, in the words of James Cran from Pinsent Masons, was to reduce the hassle and resources in defending claim.

Due to the volume of claims Mr Taheri had submitted in quick succession, the Attorney General was seemingly fed-up of these claims and successfully applied to the Employment Appeal Tribunal to prevent him from submitting any more claims. The EAT found in the Attorney General’s favour stopping him from submitting Employment Tribunal claims indefinitely. Again, on balance should Mr Taheri intend to submit a further claim, he would need the High Court’s or the Employment Appeal Tribunal’s permission. Presumably the judge would assess:

• the facts of the case;
• how genuine the case is; and
• considering all the circumstances.

Despite being a rare case, it’s is important as sometimes news emerges of serial litigants. However, in this situation lawyers should prioritise assessing the motivation of the person submitting such claims.

So Who Is Bringing These Cases and Why?

Back in 2001 in the case of Attorney General v Barker Lord Bingham helpfully defined what he termed ‘vexatious litigation’ describing it as a potential abuse of process with no legal basis, designed to cause disruption and additional expense to the respective employer and observed that these claims are often disproportionate to any gain likely to accrue’.

What Effect Can These Claims Have on Employers?

If a vexatious claim is submitted, it can have damaging cost consequences as most of these claims largely involve rejected prospective job candidates. It can prove damaging to employers and some effects include but are not limited to a:

• significant cost burden
• reduced work output
• tarnished businesses reputation and
• the transfer of precious management resources.

What Can Be Done To Stop These Serial Litigants?

Lawyers will be at the forefront following the judgment in Teheri and should be advising employer clients to:

• Review the public record of Employment Tribunal judgements to identify if the suspected serial litigant has previously submitted such cases previous. James Cran from Pinsent Masons advises these may contain useful judicial criticism of a ‘habitual’ serial litigant.
• Check if the potential serial litigant’s name corresponds with an entry on the Attorney-General’s register of ‘vexatious litigants’ as this may be useful
• However, James Cran from Pinsent Masons advises employers to be cautious if rejecting applicants who they suspect of having submitted numerous claims as rejecting candidates, for this reason, may be construed as victimisation under certain circumstances.
• Lawyers should advise employer clients to consider sending a letter to the respective claimant notifying them that if an unsuccessful claim proceeds, the claimant will be submitting an application for accrued costs.
• If lawyers assess the claim as lacking reasonable prospects of success, they should be proactively responding accordingly on the Employer Response Form and applying for the claim to be struck out.
• Alternatively lawyers can advise employers to apply for a deposit order. The tribunal can consider allowing the claimant to proceed in consideration for the deposit payment of up to £1,000.

These tactics may mitigate against the risk of valuable management time and resources being allocated to such cases.

ASSESSING FIRMS

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THE ARTICLE WAS WRITTEN USING THE FOLLOWING SOURCES

[1] Her Majesty’s Attorney General v Mr David Taheri [2022] EAT 35 - 25 February 2022- Her Majesty's Attorney General v Mr David Taheri: [2022] EAT 35 - GOV.UK (www.gov.uk)

[2] A-G v Barker [2000] - Attorney General v Barker [2000] EWHC 453 (Admin) (16 February 2000) (bailii.org)

[3] Cran, James – Tactics help combat frivolous tribunal claims – 5th April 2022 – Pinsent Masons - Tactics help combat frivolous tribunal claims (pinsentmasons.com)

[4] Charles, Kevin - Managing Vexatious tribunal claims – People Management - 4th February 2019 - Managing vexatious tribunal claims (peoplemanagement.co.uk)

[5] Employment Tribunal Rules of Procedure 2013

[6] Section 33 Employment Tribunals Act 1996

[7] Article 6 European Convention on Human Rights and Fundamental Freedoms

[8] Equality Act 2010

[9] Attorney General v Wheen [2001] IRLR 91, CA

[10] Attorney General v Groves UKEAT/0162/14

[11] Attorney General v Roberts UKEAT/0058/05

[12] Anyanwu v South Bank Students’ Union [2001] UKHL 14 [2001] IRLR 305, HL

[13] UK Government – Vexatious litigants - Vexatious litigants - GOV.UK (www.gov.uk)

[14] Section 26 Equality Act 2010 - Equality Act 2010 (legislation.gov.uk)

[15] Rule 39 Deposit Orders - Employment Tribunal Rules of Procedure 2013

[16] Rule 40 Deposit Orders - Employment Tribunal Rules of Procedure 2013