If you’re an employer then the odds are that you’ve participated in, or been threatened with, litigation in the Employment Tribunal with your employees. Such litigation can be extremely time-consuming, stressful and expensive, especially so if the employee concerned has made more than one (possibly unmeritorious) claim against you. This post will therefore examine how employers can prevent or minimise such claims being made against them and, further, how to stop or dissuade claims from serial litigants once the litigation process has started. It will therefore look at the following two issues:
- How to prevent claims by serial litigants
- How to stop or dissuade serial litigants once the litigation process has started
How to prevent claims by serial litigants
There are a number of potential ways that serial litigants can be stopped from pursuing an Employment Tribunal claim against their employer, including, among others:
- Entering in to a compromise agreement with them
- Good management of existing staff
Entering into a compromise agreement with the employee can achieve two objectives: you may choose to terminate that employee’s contract of employment and the employee waives their right to pursue certain claims in the Employment Tribunal. This can provide certainty to both employers and employees and also limits the employer’s future liability. However, offering a compromise agreement in such circumstances may set a disadvantageous precedent for future claims. If you do decide to enter into a compromise agreement then you must inform the employee that they should take independent compromise agreement advice from a solicitor. A better way of preventing serial litigation by an employee is simply by the good management of existing staff. If your employees have no grievances against you then it’s unlikely that they’ll be driven to issue an Employment Tribunal claim against you.
Unfortunately, unless the employee agrees to waive their rights to pursue such a claim it is probable that the employer will be burdened with having to defend a claim by the employee. There are currently no fees payable to issue a claim in the Employment Tribunal (there are plans to introduce such next year) and employees can issue claims themselves without having to rely on experienced legal representation.
How to stop or dissuade serial litigants once the litigation process has started
There are two ways in which employees (in particular serial litigants) can be dissuaded from continuing with their claim once it has been issued:
- By striking out their claim
- By threatening or actually pursuing them for costs
Striking out
A claim can be struck out by the Employment Tribunal at any stage of the proceedings if it is scandalous, vexatious or has no reasonable prospect of success. If an individual persistently and unreasonably issues vexatious claims in the Employment Tribunal then the Tribunal can stop them from doing so by the issue of a restriction of proceedings order.
Threatening or actually pursuing costs
Another way of dissuading a litigant (again, in particular a serial litigant) is to threaten to pursue the individual for the costs of the proceedings. Normally, the rule of thumb in the Employment Tribunal is that costs are not payable by the losing party. However, a party can make an application for costs and this can be a powerful weapon in Employment Tribunal proceedings.
Redmans are employment law solicitors based in London.
Redmans
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