Employees, workers, and even job applicants are becoming increasingly aware of their employment rights and how to bring a claim in the Employment Tribunals. With this, we are seeing a growing number of serial litigants who seek employment with the primary purpose of creating disruption.

How do we spot a serial litigant during the recruitment process?

One way of identifying a serial litigant during the recruitment process would be to search a prospective employee’s name on the Employment Tribunal Decisions Register. This will display all published judgments involving an individual’s name, although it may not reveal the full extent of their tribunal litigation.

Another option is for an employer to search a prospective employee’s social media. It is lawful for an employer to conduct social media checks; however, employers need to ensure they are complying with data protection legislation and privacy considerations.

Further clues may come from an employee’s reference or former employer. In the last 10 years, we have seen a big shift in employers only providing basic references. However, you may get information from a previous employer suggesting a background of complaints or even Tribunal claims.

Can you reject a serial litigant’s job application or dismiss an existing employee?

The key consideration for employers is that an individual who has issued a claim in the Employment Tribunal against an organisation, or who has issued a grievance alleging discrimination at an organisation, will have the protection of victimisation legislation.

It is, therefore, open to a job applicant who has been refused a job, or an employee who has been treated less favourably or dismissed from employment, to argue that the reason for rejection or dismissal is because they had previously undertaken a protected act, such as raising a grievance or issuing an Employment Tribunal claim.

This exposes employers to a high risk of having a victimisation claim lodged against them, which, if successful, could see an employee being awarded significant levels of compensation.

What should an employer do if it discovers it has taken on a serial litigant?

The priority must be to prevent any meritorious real claims from arising. That means dealing with issues with respect and in accordance with procedures.  Employers should be wary of the potential risks and pitfalls of taking premature action, and exercise patience in ‘picking their moment’ to properly address the employee’s behaviour.

Workplace disruption and tactics to encourage settlement

Serial litigant employees will often cause as much aggravation and disruption in the workplace as possible to encourage employers to ‘pay them off’. This may take the form of raising frivolous grievances, alleging discrimination or whistleblowing, making spurious requests for reasonable adjustments, submitting Data Subject Access Requests (DSARs), or filing complaints with external bodies and regulators, such as the police.

By doing so, they can effectively create statutory protections for themselves afforded by the Equality Act, whistleblowing, and victimisation legislation. Employers will need to address any complaints carefully and in accordance with proper processes.

Not only will this generate a lot of distraction and, potentially, expense for employers, but it will often have a knock-on effect for other employees within the organisation who find themselves the alleged perpetrator of very serious allegations. They may even find themselves named as respondents to a tribunal claim.

Employers will need to ensure employees who are tasked with dealing with serial litigants, such as managers, grievance or disciplinary chairs, and human resources personnel, receive adequate training and support in this role.

Can you stop a disgruntled employee from bringing a tribunal claim?

There are measures in place to effectively bar a serial litigant from bringing claims in the courts and in Employment Tribunals. This is typically achieved through Civil Restraint Orders (“CROs”) or Restricted Proceedings Orders (“RPOs”). These orders aim to protect the court system and opposing parties from the burden of dealing with unmeritorious claims.

Applications for CROs and RPOs can be brought by employers or, in some circumstances, the Attorney General. The granting of such requires a high threshold to be met, and these applications can take a long time to be processed. A list of individuals who have had these orders made against them is available online from the Government.

If an employer is faced with a claim from a serial litigant who does not have any such order made against them, it may be open for them to apply to strike out the serial litigant’s claim. Strike out is a very draconian measure, and we are seeing an increasing reluctance from the Employment Tribunals to strike out claims.

However, we have had success in striking out claims on the grounds that their claims were scandalous or vexatious or had no reasonable grounds of success, and the manner in which the proceedings had been conducted by or on behalf of the claimant had been scandalous, unreasonable, or vexatious.