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Published 20 May 2016
Serial and vexatious litigation from employees can be a serious issue for employers in the Employment Tribunals as historically, there has been nothing to stop such individuals from issuing repeated unmeritorious claims in that arena. However, other Civil Courts such as the County Court are able to stop such vexatious litigation via a Civil Restraint Order ("CRO"). A CRO restrains an individual from bringing litigation against another party, without first obtaining the permission of the High Court. If the individual breaches such an Order, they can be held in contempt of Court.
In a precedent setting claim to the High Court, DAC Beachcroft acted for a public sector organisation and successfully argued that CROs can be used to cover Employment Tribunal proceedings and that such an Order should be issued against the organisation's former employee in order to prevent further pursuit of vexatious and unmeritorious litigation against the organisation in the Employment Tribunal.
The ability to obtain a CRO is now a new tool in the Employment Tribunal armoury against vexatious litigation that offers employers very real protection.
Employment Tribunals do not have the power to restrain individuals from bringing Employment Tribunal claims. Nor are there automatic costs consequences in the Employment Tribunal to discourage individuals from bringing successive unmeritorious claims. This can be particularly frustrating and expensive for employers if they are faced with a vexatious litigant who, on losing an Employment Tribunal claim, simply submits another similar claim. You can apply for such a claim to be struck out, but the employer still has to go to the costs and expense of submitting a defence to the claim and the costs of a Preliminary Hearing to determine the strike out application.
Our client was faced with such an individual who was dismissed over ten years ago and who submitted a series of twenty-two separate claims and appeals against the organisation in the Employment Tribunals and Civil Courts over this ten year period, causing significant expense and disruption.
On 9 May 2016, we successfully obtained for the organisation a CRO against their ex-employee. This is the first time an employer has commenced proceedings in the High Court specifically to obtain a CRO to restrain an ex-employee's ability to bring claims against them in the Employment Tribunals.
In July 2015, we first successfully argued that the High Court had the jurisdiction to issue a CRO to restrain proceedings in the Employment Tribunal. In April 2016, the High Court then had to consider whether the employee had been issuing claims that were 'totally without merit', which is quite a high legal threshold. The difficultly the High Court faced was that the Employment Tribunals have a much lower threshold when striking out claims, that of 'no reasonable prospect of success'. In this case, the High Court examined all the Employment Tribunal Judgments and ultimately concluded that this particular employee had persistently issued claims that were totally without merit and so it was reasonable for the High Court to restrain them from issuing claims against the Trust in both the Employment Tribunals and the Civil Courts.
This is a precedent setting case which, as well as opening up a new avenue of legal protection for employers, may also alter how Employment Tribunals deal with vexatious litigants in the future. In its Judgment, the High Court makes a practical and powerful suggestion that to assist to protect themselves from abuse, Employment Tribunals should make express findings that a claim has been brought 'totally without merit'. Such a finding would make it much easier, and a more routine application, to then ask the High Court to make a CRO.
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