The first known case of a vexatious litigant in employment tribunal cases was heard in 2000.
A vexatious litigant is someone who brings hopeless cases, subjecting defendants to inconvenience out of all proportion to any possible gain to the claimant. The option to declare a person a vexatious litigant has been available to the courts for many years, though sparingly used. Once a person has been declared a vexatious litigant, they need the permission of the court to bring any further legal actions.
A similar provision has now been introduced into employment tribunal cases to deter vexatious complaints. The power is discretionary.
The employee had started 13 separate tribunal proceedings, none of which had succeeded. Some were dismissed as frivolous or vexatious. Others were considered to be so lacking in merit, that he was required to make a payment to allow the case to continue. In every such case, he decided not to proceed.
The Attorney General instituted proceedings to have the person declared a vexatious litigant. The Employment Appeal Tribunal (EAT) considered various arguments put forward by the claimant.
First, he argued that he had stopped bringing cases. EAT decided that this did not prevent them making the order, though it would influence their decision whether to do so.
Second, he argued that such an order would infringe his rights to bring actions under the European Convention on Human Rights. This was rejected. The effect of the order did not stop him bringing further cases.
Third, he argued that he was not vexatious as he dropped cases when told to pay a deposit. EAT accepted that he would have been more vexatious had he paid the deposit to let a hopeless case continue. However he had still started the hopeless cases.
Another point considered by EAT was that not all cases were brought against the same employer. This was considered not to be relevant. Vexatious litigation rules are primarily to stop time-wasters, not to protect victims from harassment.
Having considered all these matters, EAT made a restriction of proceedings order against the employee. The employee has been given permission to appeal against the decision in the Court of Appeal.
Attorney General v Wheen. EAT [2000]