Employees, workers, and even job applicants are becoming more and more aware of their employment rights and how to bring a claim in the Employment Tribunals. With this, we are seeing a growing number of serial litigants, who seek employment with the primary purpose of creating disruption and subsequently lodging an Employment Tribunal claim. No organisation is immune, and even small start ups and charities can find themselves as respondents to baseless litigation. Employment Tribunals appear to be showing an increasing level of patience with litigants in person: they are very anxious not to be perceived as barring access to justice. As such, litigants in person – including serial litigants – are given significant support during the tribunal process.
How do we spot a serial litigant during the recruitment process?
One way of identifying a serial litigant during the recruitment process would be to search a prospective employee’s name on the Employment Tribunal Decisions Register.. This will show all published judgements against an individual’s name, although it will not necessarily reveal the full extent of their tribunal litigation.
Another option is for an employer to search a prospective employee’s social media. It is lawful for an employer to conduct social media checks, however employers do need to ensure they are complying with data protection legislation and privacy considerations.
Lastly, further clues may come from an employee’s reference or further enquiries made of the former employer. In the last 10 years or so, we have seen a big shift in employers only providing basic references. However, you may get information from a previous employer suggesting a background of complaints or even Tribunal claims.
Can you reject a serial litigant’s job application or dismiss an existing employee?
The key consideration for employers is that an individual who has issued a claim in the Employment Tribunal against an organisation, or who has even issued a grievance alleging discrimination at an organisation, will be considered to have done a “protected act” and will have the protection of the victimisation legislation.
It is therefore open to a job applicant who has been refused a job or an employee who has been treated less favourably or even dismissed from employment, to argue that the reason for rejection or dismissal is because they had previously undertaken a protected act, such as raising a grievance or issuing an Employment Tribunal claim.
This exposes employers to a high risk of having a victimisation claim lodged against them, which, if successful, could see an employee being awarded significant levels of compensation.
What should an employer do if it discovers it has taken on a serial litigant?
The priority must be trying to prevent any meritorious real claims from arising. That means dealing with issues with respect and in accordance with procedures. Employers should be wary of the potential risks and pitfalls of taking premature action, and exercise patience in ‘picking their moment’ to properly address behaviour on the part of the Employee that they are entitled to deal with.
Workplace disruption and tactics to encourage settlement
Serial litigant employees will often cause as much aggravation and disruption in the workplace as possible to encourage employers to ‘pay them off’. This may take the form of raising frivolous grievances alleging discrimination or whistleblowing, making spurious requests for reasonable adjustments, making Data Subject Access Requests (DSAR), or raising complaints to external bodies and regulators such as the police. By doing so, they can effectively create statutory protections for themselves afforded by the Equality Act, whistleblowing, and victimisation legislation. Employers will therefore need to address any complaints carefully and in accordance with proper process.
Not only will this generate a lot of distraction and potentially expense for employers, but it will often have a knock-on effect for other employees within the organisation who find themselves the alleged perpetrator of very serious allegations. They may even find themselves named as respondents to a tribunal claim.
Employers will need to ensure employees who are tasked with dealing with serial litigants, such as managers, grievance or disciplinary chairs, and human resources personnel, receive adequate training and support in this role. Serial litigants can be intimidating, unrelenting, and difficult to deal with.
Can you stop a disgruntled employee from bringing a tribunal claim?
There are measures in place to effectively bar a serial litigant bringing claims in the courts and in Employment Tribunals. This is typically achieved through Civil Restraint Orders (“CROs”) or Restricted Proceedings Orders (“RPOs”). These orders aim to protect the court system and opposing parties from the burden of dealing with unmeritorious claims.
Applications for CRO’s and RPO’s can be brought by employers or in some circumstances, the Attorney General. The granting of such require a high threshold to be met, and these applications can take a long of time to be processed in the courts. A list of individuals who have had these orders made against them is made available by the Government online.
If an employer is faced with a claim from a serial litigant who does not have any such order made against them, it may be open for them to apply to strike out the serial litigant’s claim. Strike out is a very draconian measure and we are seeing an increasing reluctance from the Employment Tribunal’s to strike out claims.
However, at DMH Stallard, we have had success in striking out claims brought by serial litigants on the grounds that their claims were scandalous or vexatious or had no reasonable grounds of success, and that the manner in which the proceedings had been conducted by or on behalf of the claimant had been scandalous, unreasonable, or vexatious.
For more information about any of the issues covered in this update, or if you are an employer or employee needing further advice, please get in touch with one of our Employment Law solicitors today.
