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Employment Law

Legal guidance - compliance - software

23 MAY 2016

Employment Tribunal, is this case totally without merit?

Employment Tribunal, is this case totally without merit?
Joanne Oliver
Senior Associate, Veale Wasbrough Vizards

In Nursing and Midwifery Council v Harrold, the High Court concluded that it would be 'desirable' for Employment Tribunals (ETs), when they make decisions in weak claims, to make a finding on whether the claim (or application) is totally without merit.

The facts

Mrs Harrold is a former nurse, who brought several unsuccessful employment tribunal claims against her former employer, an NHS Trust (the Trust) and the Nursing and Midwifery Council (the NMC), after she was dismissed and struck off the NMC's register.

The Trust and the NMC applied to the High Court for a Civil Restraint Order (CRO), which would prevent her from bringing further claims without the permission of the judge identified in the CRO.

Mrs Harrold brought 15 claims in total and the High Court concluded that many of them were bound to fall and, therefore, were totally without merit.

In deciding whether the claims were totally without merit, the High Court considered the decisions reached by the ETs and the fact that, in many cases, Mrs Harrold had been trying to re-litigate issues that had already been decided.

The High Court concluded that Mrs Harrold demonstrated 'a pattern of obsessiveness' and made a General Civil Restraint Order, which will restrain her from issuing a claim or making an application in the High Court or the county court (without permission) for two years.

In summing up, the High Court indicated that it 'will greatly help to have the views of the ET on the TWM [totally without merit] issue in any case in which a respondent to ET claims applies for a CRO' in the High Court.

Best practice

CROs protect the public interest in ensuring that judicial time and resources are not wasted by claims that are bound to fail. They can also protect employers from the costs associated with such claims from vexatious employees who repeatedly present claims in multiple forums.

Employers can apply for a CRO in order to stop the same employee from persistently bringing claims or applications. However, their claims must be totally without merit for a CRO to be granted, and this is a very high threshold to satisfy. In practice, CROs are only likely to be contemplated in a limited number of cases where there have been a series of meritless nuisance claims.

Following the High Court's encouragement in this case, it is likely that ETs will begin to expressly consider and make findings on whether weak claims/applications are totally without merit. Representations should be made on behalf of employers for a totally without merit finding to be recorded in the judgment, particularly if the employee has brought a claim previously or you have reason to believe that they may present further vexatious claims.
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