Dealing with serial litigants and vexatious claims in Employment Tribunals

Sometimes you might get the impression from the media that spurious employment claims or serial litigants are much more common than they really are. In the 20 years I’ve been working in employment law I can count the number of such claims that I’ve seen on one hand. However, even if they are relatively uncommon, there’s no doubt that if you are unlucky enough to find yourself on the receiving end, they are incredibly irritating and you will want to find a way to extricate yourself as quickly as possible.

What are vexatious Employment Tribunal claims?

When we talk about vexatious or spurious claims, we mean claims which do not have any merit or any real basis – the claims might have been brought purely for nuisance value, and/or to try to get the employer to reach a settlement.

What are serial litigants?

Serial litigants (otherwise known as serial claimants) are people who repeatedly bring claims – usually, but not always, for similar things. Often those claims will also be vexatious.

What are the options for employers who are involved in these kinds of Employment Tribunal claims?

It is not always easy to show that a claim is vexatious, or that someone is a serial litigant, but if you think you may have a good argument, then there are some things that you can do which are definitely worth considering.

Do your research

In one case that I dealt with recently, we found lots of information about the Claimant online which helped us to track down a number of other similar claims she had made. In particular, it is worth knowing that all Employment Tribunal and Employment Appeal Tribunal decisions are now available online. This only shows cases where a decision has been reached (i.e. there won’t necessarily be anything to see if a claim was brought but the parties settled) but it is always worth a look.

Use the Tribunal rules

There are some tools at your disposal if you feel that a claim is vexatious or weak, but it is important to use these carefully and ensure you make the right application at the right time. These include:

Applying for further and better particulars

Often, vexatious claims will be light on detail (because there is no real basis for the claim) so sometimes it can be a good idea to request further information in order to try and clarify the basis for the claims. If the Claimant refuses to answer, or if their information shows the claim is weak or without basis, then that can help support other applications such as a deposit order, strike out order and/or costs.

Applying for strike out

As you can imagine, strike out is something that Employment Tribunals will only agree to where there is a strong basis for it. However, if you can demonstrate that a case has no real prospect of success, then it is possible. The difficulty is that in considering a strike out application the Tribunal won’t normally be able to consider any witness evidence, and it is relatively unusual to be able to show that there is no merit to a claim without having any evidence heard.

Applying for a deposit order

This is where an Employment Tribunal agrees that a claim is weak and therefore requires a party to pay a deposit into the Tribunal (of up to £1,000) which they will lose if their claim fails. If you can’t persuade a Tribunal to strike out, they might be prepared to make the Claimant pay a deposit. If you successfully get a deposit order, it is good way of ensuring that Claimants think carefully about whether to continue with their claims.

Applying for costs

This can potentially be done alongside any of the other applications or on its own. Before doing so, it is worth giving the Claimant a warning that if they don’t withdraw, you will pursue costs (and, if you wish, this could be combined with settlement negotiations), although it is always best to take advice, as there can be complications. Applying for costs needs to be done carefully and you need to be aware of the reality of the situation. Costs awards are relatively rare in Employment Tribunals, and therefore unlike the civil courts, Claimants won’t necessarily have to pay any of your costs if their claim fails. One of the reasons for this is that even if the Tribunal feels that there could be a basis for making one party pay some or all of the other party’s costs, they have to take account of the person’s ability to pay. As most employment claims are brought by people who are out of work, this tends to mean that costs awards are fairly unusual and when they are made, they are for relatively small amounts. Although it could be a deterrent, there is a danger that you might find that in making the application for costs you are then incurring costs that you may be unlikely to recover.

In very extreme cases, the courts and Tribunals can put vexatious serial litigants on a blacklist to prevent them being able to bring other claims.

If you are unfortunate enough to receive a claim that you feel is vexatious and/or has been brought by a serial litigant, then do get in touch and we can help.