It is not unheard of for employees (or former employees) to try their luck when it comes to pursuing employment tribunal claims in the hope they may be able to receive a financial award. Such individuals can be known as ‘vexatious litigants’ and their claims are usually unmeritorious.
What are vexatious claims?
Lord Bingham MR, in HM Attorney General v Barker, considered the meaning of vexatious proceedings:
“The hallmark of a vexatious proceeding is in my judgment that is has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court…”.
Vexatious claims may be groundless, repetitive and used to annoy or harass an employer (or former employer) which is in stark contrast to the main purpose of employment proceedings: to seek a solution to a legitimate dispute.
So, what can employers do if faced with a vexatious claim?
There are practical steps employers can look to take to help curtail vexatious claims, however, whatever legal mechanism is sought, employers will need to establish whether the mechanism is proportionate to the case at hand.
individuals can be known as ‘vexatious litigants’ and their claims are usually unmeritorious.
Strike Out
An Employment Tribunal may strike out all or part of a claim, either by its own initiative or by a strike out application made by a party. The grounds that a claim (response or reply) may be struck out, are found in Rule 38(1) of The Employment Tribunal Procedure Rules 2024 (the ET Rules) and one or more of the following must be established:
- That the claim is scandalous or vexatious or has no reasonable prospect of success;
- That the manner in which the proceedings have been conducted have been scandalous, unreasonable or vexatious;
- Non-compliance with any of these Rules or with an order of the Tribunal;
- That the claim has not been actively pursued; and/or
- That the Tribunal considers that it is no longer possible to have a fair hearing.
The bar for a strike out order is high. Not only must one of the above grounds be satisfied, but the Tribunal must then decipher whether it is just for the claim (or part of it) to be struck out. The Tribunal must establish whether a fair trial can still go ahead or if less severe measures can be put in place instead. In essence, would it be completely reasonable to order a strike out of a claim?
PP v GG Limited:
“Given the draconian nature … of the strike-out power, it will only be a proportionate response to conduct that is comparably extreme.”
If you are to consider applying for a strike out order, you should always analyse whether you have enough evidence to satisfy the legal threshold. Yet, for employers, there are other practical tools that could be used to help discourage unmeritorious claims bought against them.
An Unless Order
As an alternative, employers could look towards applying for an unless order. Rule 39 allows the Tribunal to make an order that, unless that certain order is complied with, the claim (in full or in part), of the party against whom the order is made, will be dismissed on the date of non-compliance.
The EAT stated, in Peposhi v GO CRISIS Ltd and Woven Solutions Ltd:
“Unless Orders are useful case management tools and orders to ensure the Tribunal’s orders are complied with. They are, however, draconian in nature and can lead to the strike out of an entire claim, without further consideration.”
A Deposit Order
A deposit order is an amount of money (up to £1,000) that the Tribunal can order a party to pay as a condition of continuing with their claim. If the a party does not comply with the deposit order, they risk their claim being struck out. The purpose of a deposit order is to dissuade those claims which have ‘little reasonable prospect of success’ which is an easier threshold to meet compared to the ‘no reasonable prospect of success’ test that belongs to the strike out order.
Costs Warnings and Orders
Employment Tribunals possess discretionary powers to award cost orders for vexatious, abusive, disruptive, or otherwise unreasonable claims; or claims which simply have no reasonable prospect of success. Parties seeking their costs should be reminded that the threshold for a cost order is quite high, but Tribunals will not err in using their discretionary power when it is just to do so.
If you have any queries or are seeking further information on the above article, or within the sphere of employment law more generally, please do not hesitate to contact a member of our employment law team.
