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Restriction of proceedings orders

Adrian Fryer

Adrian Fryer

Employers dread the vexatious litigant. Even the most spurious of tribunal claims takes up valuable management time and incurs legal fees to defend. The judgment of the EAT in Attorney General v Taheri will be a salve to those employers who have previously had their fingers burned by a serial complainer. The EAT can make an RPO – an order restricting an employee’s right to bring tribunal proceedings – if the employee has habitually and persistently, and without reasonable grounds, brought vexatious proceedings in the employment tribunal (or EAT) against one or more employers. In Taheri, the EAT has shown that there is a limit to what the employment tribunal system is prepared to accept from a vexatious litigant.

The employee brought 44 employment tribunal claims between 2012 and 2020, all of them relating to failed job applications. He brought a range of discrimination claims based on age, race and disability. Over that time, the tribunal found some of his claims were vexatious, other claims were struck out, and some were withdrawn after an application for strike out or a deposit order. The employee had threatened prospective employers with adverse publicity and told their lawyers he would report them to their regulatory authorities. He appeared to have targeted certain companies and used the tribunal process to put pressure on prospective employers to pay out low level settlements. The Attorney General (the government legal department) applied for an indefinite RPO, preventing the employee from lodging any more claims. The employee resisted the application saying it breached his right to a fair trial under the European Convention on Human Rights and his rights under the Equality Act 2010.

The EAT granted the order. The employee’s claims were repetitious, with the same kind of allegations being made against different companies. The employee had sought similar sums of money and adopted the same tactics which often involved withdrawing his claims at an early stage. Only some claims had been struck out by the tribunal, but all had been brought without reasonable grounds. He had not won a single claim after a full hearing. The employee’s conduct was vexatious and an abuse of the tribunal process. The EAT said he had weaponised the tribunal process. Dealing with his claims took up a large amount of judicial time which the tribunal could have spent dealing with other claims. The RPO was necessary for public protection against abusive claims and to ensure that the court process more generally was not hampered by persistently baseless proceedings. The order would act as a filter rather than a complete ban – the employee could still apply to the EAT for permission to bring proceedings in an appropriate case, or to the tribunal if there were reasonable grounds and it wasn’t an abuse of process.

This order is good news for employers. It is an extreme example of an unreasonable job applicant trying to make a living out of bringing spurious claims against unsuspecting businesses. These orders will be as rare as the facts of this case. However, this judgment acts as a reminder to employers that the employment tribunals and appeal courts will act decisively in relation to vexatious litigants where appropriate, empowering employers to do the same where claims are entirely baseless.

 

Adrian Fryer, Partner & Head of Employment

t: 0151 224 0539

e: adrian.fryer@bermans.co.uk

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