How should employers manage weak tribunal claims? What can you do to help minimise the amount of management time involved in defending claims which have little merit?
Last week James Cran talked to this programme about some of the tactics lawyers use to help their clients to defend claims. This is in the news after the serial litigant David Taheri was banned from bringing tribunal claims in future. Personnel Today reports how he had brought more than 40 claims against a variety of companies and, after a successful an application by the Attorney General, the Employment Appeal Tribunal imposed a restriction of proceedings order on him of indefinite notice, stopping him from bringing claims against employers without the permission of the EAT or a high court judge. Most of his 43 claims over an 8 year period were struck out after either having no reasonable project of success or after being withdrawn by Taheri. During that time a number of Respondents paid small out-of-court sums to Taheri to settle the case to save themselves the time and trouble of defending the actions.
As we pointed out last week, establishing that someone is a vexatious litigant and getting them banned in that way is very rare. For most employers they will need to find an alternative way to manage cases which appear frivolous, or unreasonable, but which can consume a huge amount of management time if you’re not careful. We are returning to this to look at further steps you might take to defeat the claim or at least persuade the claimant to withdraw.
As People Management reports, most of these cases are brought by job seekers. So, as in Taheri’s case, the ‘modus operandi’ is, typically, to apply for a job and then, when rejected, bring a tribunal claim seeking compensation for unlawful discrimination. The rejection may well have been on lawful grounds but the employer is left with the burden of proving that’s the case and, doubtless, left wondering how many other firms have been targeted in the same way.
One way of finding out is to check the database of employment tribunal judgments. For a number of years it has been possible to do that online by going to the government’s purpose-built website and, in many cases, you’ll find the judgment is there for you to read in full. So, for example, if you put the name of David Taheri in the search-engine you’ll see a long list of all the claims he has registered. So, that’s potentially quite useful, however, as James Cran told me, you do need to be careful with that approach:
James Cran: “Now, this is something that I wouldn't recommend that you do for all applicants for jobs because if you see that they’ve raised a discrimination claim you can't unknow what you know and if you were not to give them a job, for example, because they'd raised a discrimination claim previously that is an act of victimisation so there are real risks in that. However, if you've got a claimant who's being very difficult then there is nothing wrong with checking the online tribunal judgment system to see if they've raised previous claims, if there's been any criticism of their behaviour in the judgment, and that is something that is useful information for you because if you can say, look, this is something that this individual habitually does, like Mr. Taheri, then that is something that is relevant, and can be used. It's quite rare but it can be used when you're dealing with a difficult claimant. So, it is a useful resource. It doesn't go back that many years but over the last five years, or so, you'll be able to see what has been happening and that’s the situation with Mr Taheri. He’d raised 40 claims within a decade, he’d been abusing the process, he'd been claiming very large sums of money, which had no real basis, and then settling for much less, nuisance payments of a few hundred pounds, or something like that. So, attacking the quantification early, making clear that any unreasonable behaviour will not be tolerated, putting the claim in a cage, or on rails, however you want to put it, restricting it, making it clear so that you're on fair notice of what the claim is. These are all very useful techniques for trying to reduce the amount of management time and hassle that employment tribunal claims can cause.”
Joe Glavina: “To what extent do the tribunal rules of procedure help in these cases, James, where the case is weak?”
James Cran: “If you think the case has little prospects of success, you can ask for a deposit order and this can be up to £1,000 and is a decision of the tribunal to say, look, on the face of it, this looks really weak case so if you want to continue you've got to pay a deposit and that can be several hundred pounds. Now, it's not a huge amount of money but it is a useful deterrent for somebody who's got a very weak claim. If you think the case has no reasonable prospects of success, so it really has no basis, then you can ask for the claim to be struck out. Now the claimant will have an opportunity to say why it shouldn't be struck out at a hearing, or at least in writing, but those are things that are worth considering and they are a recognised part of the tribunal system to deal with claims that are very weak or, indeed, hopeless.”
That was the second half of the interview with James on the subject of managing tribunal claims. The first half, last week, covered Calderbank offers and Scott schedules among other things. That programme is ‘Tactics at the fore when facing unreasonable tribunal litigants’ and is available now for viewing from the Outlaw website.
- Link to judgment: Her Majesty’s Attorney General v Taheri