Serial litigants and their impact in the Employment Tribunal

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In recent years, the phenomenon of serial litigants (also known as serial claimants) has gained prominence in the realm of employment law.

These individuals, often represented by legal firms or acting on their own, file multiple employment-related claims against their employers. While our justice system is designed to protect employees’ rights, the proliferation of serial claims raises important questions about the effectiveness of these protections, the burden on employers, and the potential for abuse.

With an increasing number of the business we represent having to deal with this recently, I decided to delve into the world of serial litigants, exploring their motivations, the impact of their actions, and the measures taken to address this issue.

Serial litigants

Employment Tribunal fees were introduced during July 2013 by the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. Prior to that, since the creation of the Employment Tribunal system, claimants were not required to pay fees to bring their claims. Under the Fees Order, claimants had to pay separate fees to issue their claims and have them heard. Fee levels differed according to the nature of the claim.

On 26^th July 2017, the Supreme Court declared the Fees Order to be an unlawful interference with the common law right of access to justice, and quashed it. Employment Tribunal and Employment Appeal Tribunal claims no longer attract fees. While I tend to agree with the Supreme Court on their moral reasoning, the fees did help stem the flow of spurious claims.

The number of single cases (brought by one person) received per quarter was 68% lower between October 2013 and June 2017 than in the year to June 2013. The average number of multiple cases (brought by two or more people) received per quarter fell by 75% over the same period.

After the Fees Order was quashed, with no initial financial implication for a claimant to worry about, it became far easier to submit a claim without much worry or hassle; this lead to the increase once again of serial litigants.

Who are Serial Litigants?

Serial litigants are individuals who repeatedly file employment-related claims against different employers. These claims can range from allegations of unfair dismissal and discrimination to harassment and unpaid wages. Serial litigants often seek compensation, reinstatement, or other remedies through the Employment Tribunal system.

Motivations behind serial claims

Understanding the motivations of serial litigants is essential to addressing this issue. While some serial litigants may have legitimate grievances, others may exploit the system for personal gain.

Common motivations include:

Financial Gain – Some individuals see the Employment Tribunal system as a potential source of income, aiming to secure financial settlements or compensation from employers.
Retaliation – In some cases, serial litigants may file multiple claims as a form of retaliation against employers or to settle personal scores.
Test Cases – Serial litigants, in coordination with legal representatives, may use their cases as test cases to challenge specific employment practices or establish legal precedents.
Advocacy – Some serial litigants are driven by a desire to advocate for employees’ rights and draw attention to workplace issues.

Impact on employers

Serial claims can have a significant impact on employers, both financially and operationally:

Financial Costs – Defending against multiple claims can be costly for employers, who must allocate resources to legal fees, management time, settlements, and potential compensation.
Operational Disruption – The process of responding to claims, gathering evidence, and attending hearings can disrupt business operations, affecting productivity and morale.
Reputational Damage – Publicised claims can tarnish an employer’s reputation, making it harder to attract and retain talent.

Bogus job applications

In today’s competitive job market, employers also face a growing challenge in the form of bogus job applications from serial claimants.

These are not ordinary applications seeking genuine employment but rather a deceptive ploy by individuals with the sole aim of pursuing discrimination employment tribunal claims if and when their application is rejected. This issue presents a complex dilemma for both employers and the justice system.

Bogus job applications are a form of manipulation that can undermine the hiring process and create unnecessary legal entanglements. Individuals engaging in this behaviour often submit applications with no genuine intention of securing the position. Instead, they hope to capitalise on a rejection, claiming that their application was denied due to discrimination based on one or more protected characteristics such as race, gender, age, or disability.

For employers, the consequences can be detrimental. These deceptive applications not only waste valuable time and resources but also tarnish the reputation of organisations. In many cases, they can lead to lengthy legal battles, distracting employers from their primary mission of finding qualified candidates and fostering a diverse and inclusive workplace.

To address this challenge, employers must remain vigilant in their hiring processes. Implementing robust and transparent hiring practices, such as documenting application reviews and interview feedback, can help demonstrate that hiring decisions are made fairly and objectively.

Training hiring managers to recognise and address potential discrimination is equally crucial. By prioritising fairness and inclusivity, organisations can protect themselves from spurious claims while upholding their commitment to equal opportunity employment.

Addressing serial claims

Efforts have been made to address the issue of serial litigants in employment law:

Costs Orders – Employment Tribunals have the power to make costs orders against serial litigants who bring vexatious or unmeritorious claims, requiring them to pay some or all of the respondent’s legal costs.
Strike Out – Tribunals have the authority to strike out claims that are weak, frivolous, or vexatious.
Improved Early Conciliation – The introduction of Early Conciliation by ACAS (Advisory, Conciliation and Arbitration Service) aims to resolve disputes before they reach the tribunal stage, potentially reducing the number of claims.
Legal Reforms – Ongoing legal reforms seek to streamline the tribunal process and discourage unmeritorious claims.
Vexatious Litigant List – This government list includes vexatious litigants who persistently take legal action against others in cases without any merit and are, as a result, forbidden from starting civil cases in courts without permission. The list can be found here.

Serial litigants in employment law represent a complex issue with both legitimate and potentially abusive motivations. While the justice system is designed to protect employees’ rights, it must also guard against exploitation and abuse.

By implementing measures to identify and address spurious and vexatious claims, the legal system strives to strike a balance between safeguarding employees and ensuring a fair and just process for employers. It is a delicate balance that requires ongoing scrutiny and adaptation to maintain the integrity of the Employment Tribunal system.

If you believe you have been affected by a serial claimant that has put a vexatious claim in against your company, please get in touch with the Employment Team at Oakwood Solicitors who will be happy to discuss with you and how best to tackle these difficult situations.