Restraining Civil Actions for Totally Without Merit Cases
The High Court has recently suggested that Employment Tribunals should consider whether a weak claim is ‘totally without merit’ and if so to impose a Civil Restraint Order, preventing a party from issuing claims or making applications without their permission.
In the case of Nursing and Midwifery Council v Harrold (2016) the Claimant was a nurse and had brought 15 claims against her employer and the Nursing and Midwifery Council over an eight year period. They argued that her claims were totally without merit, which the High Court accepted and made a Civil Restraint Order for the maximum period of two years restraining the employee in question from bringing any further claims against the parties in question in the Tribunal, County Court or High Court.
In reaching the decision the court considered the employee’s right to bring claims and ultimately her right to a fair trial under Article 6 of the Human Rights Act 1998. This had to be balanced against the overall cost to the employer and the Nursing and Midwifery Council having to continually defend her unmeritorious claims and applications as well as the strain on the resources of the Employment Tribunal.
The court found that the fact the employee was representing herself was irrelevant and that there still needed to be protection from claims that were totally without merit even where they had not had the benefit of legal advice.
Prior to this decision there was no express provision in the rules for Employment Tribunals to make an order preventing claims from being made. The decision is therefore likely to prompt employers facing Employment Tribunal claims to ask the Tribunal to consider whether a claim is ‘totally without merit’, especially where it has been brought by a vexatious litigant.