Vexatious litigants in the employment tribunal can be an expensive and time-consuming problem for respondents. The employment tribunals’ powers to restrain such vexatious litigants are limited. This is particularly the case in discrimination proceedings where the threshold for strike-out is very high.
The Attorney General can institute proceedings under section 33 of the Employment Tribunals Act 1996 where they consider that a person has “habitually and persistently and without any reasonable ground instituted vexatious proceedings”. In practice, however, it can take a very long time for section 33 proceedings to be instituted following a referral to the Attorney General.
However, there is an alternative for respondents faced with persistent unmeritorious claims from a disgruntled litigant. Since 1 October 2004, the civil courts have had the power to make Civil Restraint Orders (CROs) under the CPR, either of their own motion or on the application of a party (CPR 3.11).
The principles applicable, and practice to be employed, are set out in Practice Direction (PD) 3C. There are three levels of CRO:
- A limited CRO restrains a party from making any further applications in the proceedings without first obtaining the permission of the judge identified in the CRO (paragraph 2.2(1), PD 3C). It is a precondition for making a limited CRO that the party in question should have made two or more applications which are “totally without merit” (paragraph 2.1, PD 3C).
- An extended CRO restrains a party from issuing claims or making applications in the High Court or County Court (if the order has been made by a judge of the High Court) where those claims or applications concern any matter involving or relating to or touching upon or leading to the proceedings in which the order is made, without first obtaining the permission of the judge identified in the CRO (paragraph 3.2(1), PD 3C). The precondition for the making of an extended CRO is that the party in question has “persistently issued claims or made applications which are totally without merit” (paragraph 3.1, PD 3C).
- A general CRO restrains a party from issuing any claim or making any application in the High Court or County Court (if the order has been made by a judge of the High Court) without first obtaining the permission of the judge identified in the CRO (paragraph 4.2(1), PD 3C). The pre-condition for the making of a general CRO is that the party restrained should have persisted in issuing claims, or making applications, which were “totally without merit” in circumstances where an extended CRO would not be sufficient or appropriate (paragraph 4.1, PD 3C).
The potential to make a CRO in relation to employment tribunal proceedings
Under the CPR the High Court can only make a CRO in relation to the issue of claims or applications in the High Court and the County Court. However, in Nursing and Midwifery Council and another v Harrold [2016] IRLR 30, the High Court held that it has the inherent jurisdiction to make a CRO in relation to employment proceedings before the employment tribunal.
In Harrold, the Nursing and Midwifery Council (NMC) and the Hospital Trust that had employed Mrs Harrold as a nurse, sought a CRO against Mrs Harrold from the High Court. Following her dismissal, Mrs Harrold had brought a series of claims against the NMC and the Trust, most of which were brought in the employment tribunal, with some also in the County Court.
Mrs Harrold argued that the court did not have the jurisdiction to make a CRO in respect of employment tribunal proceedings, claiming:
- The employment tribunal has its own powers to restrict proceedings under the ET Rules.
- The Attorney General has the power to restrain vexatious employment tribunal proceedings under section 33, ETA 1996; and
- Making a CRO would be contrary to the fundamental principle that discrimination claims are fact-sensitive and should not be determined summarily.
The court disagreed. None of the employment tribunals’ powers prevented claims being brought in the first place and the existence of the Attorney General’s powers did not negate the need for CROs. With regard to discrimination claims, the court concluded the principle was “only relevant to cases which are sufficiently arguable to merit consideration on the facts. If they are then permission to bring proceedings will be given. If they are not then the principle is not engaged.”
Another recent example of a respondent making a successful application to the High Court for a general CRO pursuant to CPR 3.11 and PD 3C, restraining a litigant from commencing all forms of civil litigation (including further employment tribunal proceedings) without first obtaining the permission of the judge, is Pricewaterhouse Coopers v Popa (Unreported, 14 March 2016).
