Repeated employment tribunal claims becoming ‘increasingly frequent’


Although the introduction of employment tribunal fees was intended to deter weak claims, there is increasing evidence that fees are deterring individuals who have valid complaints – while doing nothing to prevent a rising number of litigants bringing multiple hopeless claims that still need to be defended, as a recent case has brought to light.

Ex-nurse Mrs A Harrold brought numerous claims against the Nursing & Midwifery Council and the North Bristol NHS Trust between 2006 and 2016, including 15 employment tribunal claims of direct race discrimination, victimisation and harassment.

Harrold began working as a nurse in 2001 and was dismissed in December 2005, mainly because of her unwillingness to work with others or accept direction. She was struck off the Nursing & Midwifery Council’s register of nurses in 2009.

The bringing of repeated employment tribunal claims appears to be a growing trend – and there are few routes for organisations to go down to protect themselves from them, say legal experts.

Neil Johnston, director of employment and pensions at law firm Fieldfisher, said: “There are very few ways under the employment tribunal rules that respondents can prevent or stop repeated employment tribunal claims from vexatious litigants.The best way is by applying for a strikeout.”

This essentially means that the employer will have to attend a preliminary hearing to argue their case against the claimant in front of a judge and prove that the case brought by the claimant is totally without merit and has no reasonable prospect of success.

However, employment tribunals are particularly unwilling to strike out claims of discrimination, and will generally want to hear the evidence on both sides.

“If an individual makes lots of allegations of discrimination, harassment or victimisation, the tribunals are very reluctant to strike out these sort of claims,” said Johnston. “It’s a very serious issue and the tribunals will want to make sure they’re doing the right thing, so there is a high evidential threshold that respondents have to reach before convincing a judge to strike out the claim.”

Employers can also write to the attorney general asking them to intervene to prevent the individual continuously litigating against them. But these applications can take a long time, and the attorney general is often reluctant to act.

But Johnston has been working on a new option for employers. Under the Civil Procedure Rules, defendants faced with repeated unmeritorious claims can apply for a civil restraint order in the High Court. Such restraining orders have varying levels of severity depending on the circumstances and tend to be valid for two years. “They basically prevent the individual from bringing claims in any proceedings that the order determines,” he explained.

In the case of Nursing & Midwifery Council and North Bristol NHS Trust v Harrold, the High Court held that the inherent jurisdiction of the High Court is applicable in the employment tribunal system, and that civil restraint orders can be made in the High Court that are binding on employment tribunals. The High Court granted a general civil restraint order against Mrs Harrold, preventing her from bringing further claims against the Nursing & Midwifery Council and the North Bristol NHS Trust.

“This groundbreaking decision is an extremely useful weapon for all respondents faced with individuals who refuse to take no for an answer and seek to litigate, again and again, totally unmeritorious claims,” said Johnston.

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