Vexatious claims hit the headlines last year after one claimant who was hit with a costs order for bringing yet another claim of discrimination against an unsuspecting employer went on to succeed in his appeal against the Employment Tribunal’s decision to strike out his claim. Despite previous tribunal judgments (against different employers) recording a strong suspicion that the claimant was making vexatious claims to see if he could get a settlement payment, the serial claimant won his claim for disability discrimination, after having brought at least 30 other similar claims which were usually withdrawn or struck out.
Well, the ante was certainly upped by the Attorney General who recently turned the tide on a vexatious claimant in launching legal action against them. This was not a costs order, however, but an indefinite restriction of proceedings order (RPO).
Indiscriminate discrimination claims
According to the applications, the respondent, David Taheri, had made more than 40 claims in the Employment Tribunal over a period of ten years, all relating to unsuccessful applications for employment. His modus operandi, it claimed, saw him apply for a job and, once he was refused, launch legal actions against the potential employer on the basis of age, race or disability discrimination. Details and accusations were sketchy; he usually valued the claims between £25,000 and £40,000, but sought a nuisance settlement of a few hundred pounds, often with the threat of adverse publicity or regulatory referral against the solicitors acting for the employer. In some cases, he was also accused of harassing the employer by turning up at the workplace and angrily airing his grievance, writing repeatedly to demand settlement (or threatening to hold a press conference), and booking in fictitious appointments under different names.
The Attorney General’s application for an RPO was made pursuant to section 33 of the Employment Tribunals Act 1996. The applicant asked the Employment Appeal Tribunal to make an RPO of indefinite duration against the respondent, on the basis that he had habitually and persistently, and without reasonable grounds, instituted vexatious proceedings before the Employment Tribunal. Mr Taheri resisted the application on the basis that it would violate his rights to a fair trial under the European Convention on Human Rights.
Eady J found that the litigation in question was plainly habitual and persistent. Mr Taheri had issued at least 43 claims over a ten-year period. The judge did not derive any comfort from Mr Taheri’s submission that he had “only three” claims pending in the tribunals at present or that there had been a four-year gap in his pursuit of claims.
In determining whether claims had been brought “without reasonable grounds”, it was noteworthy that not one of his claims had been successful at a full merits hearing and that many other claims had been struck out or withdrawn after deposit orders were made against him. Mr Taheri had “weaponised” the tribunal process by subjecting would-be employers to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to him.
In conclusion, Eady J, allowed the application and was satisfied that the balance fell firmly in favour of making an RPO of indefinite duration: “That, it seems to me, is necessary for public protection against abusive claims and to ensure that the administration of justice is not impaired by the persistent pursuit of unmeritorious proceedings,” she added.
Pump up the volume
The case provides some interesting lessons. The sheer volume of cases (43 claims across ten years brought against potential employers who had refused to give him a job) shows a clear pattern of behaviour. While the RPO is, as the judge put it, a “filter rather than a barrier” to future claims, Mr Taheri is effectively banned indefinitely from starting court cases without permission. The RPO means that, without the leave of a judge from the Employment Appeals Tribunal, he cannot issue proceedings in the Employment Tribunal.
Many employers in this present case sought to “buy off” the spurious claim for a small sum as a commercial decision rather than incur the legal fees of defending it. The EAT stressed that did not necessarily mean the claim had not been vexatious. Going via ACAS is a cost-effective settlement route but not one to be recommended on multiple occasions as it sets a terrible precedent, one relied on heavily by Mr Taheri who was able to extract nuisance settlement payments via ACAS, without even incurring the costs of his own solicitor to advise on and sign off a settlement agreement.
Are there any other options? Consider applying for the case to be stuck out and, in the alternative, for a deposit order to be made as a condition of the case being pursued. In this case, Mr Taheri refused to pay a number of deposit orders made against him and so the proceedings were discontinued. If a claimant does make the deposit payment and the claim fails, the claimant will be treated as acting unreasonably in pursuing the claim and an award for costs may be made, including the payment of the deposit to the other party. Costs do not generally go in favour of the winning party in an Employment Tribunal, but an application for costs may be made. In a hopeless case that has been vexatiously brought, a tribunal may well be persuaded to make a costs award against the claimant.
Don’t settle for more
Having good housekeeping for those on an employer’s interview panel is a must for this sort of action and defending these claims generally. Make sure that the interview panel is up to date with their D&I training. Be clear about the importance of keeping notes: what to write and, more importantly, what not to write. In some cases, Mr Taheri’s claims were struck out or rejected where it was evident or noted that the decision not to hire him had been for some non-discriminatory reason (for example, because he did not have the relevant experience, had lied on his application form or failed to respond to text messages to arrange a work trial). Hiring decisions should be robustly made involving HR.
In conclusion, an employer should not panic if they receive a strongly worded letter before action. The financial and potential reputational cost of a discrimination allegation is obviously a cause for concern, but undertake a calm, measured review into the claim and the options. Do not be intimidated into to a settlement.
