Attorney General v Bentley

An Employment Appeal Tribunal may make an indefinite restriction of proceedings order under Employment Tribunals Act 1996, section 33 where a person habitually and persistently institutes vexatious proceedings without reasonable ground. Vexatious proceedings may have no discernible legal basis, impose inconvenience, harassment and expense disproportionate to any likely gain, and misuse the tribunal process.

Repeated discrimination claims against different respondents can satisfy that test. The absence of a single underlying dispute is no obstacle. An indefinite order is justified where the pattern of claims is continuing, abusive and not likely to end naturally. The order restricts proceedings subject to the Employment Appeal Tribunal's permission; it does not impose an absolute bar on litigation.

The Attorney General applied for a restriction of proceedings order against Mr Bentley under section 33 of the Employment Tribunals Act 1996. The application was supported by evidence of 31 sets of Employment Tribunal proceedings, largely alleging age discrimination after unsuccessful applications for work.

Mr Bentley had not attended any scheduled hearing. His claims had achieved no success. Many had been dismissed, withdrawn or struck out, including claims found to have no reasonable prospect of success or to be scandalous or vexatious. He had also failed to comply with directions in this application and was debarred from further participation.

The central issue was whether his repeated claims met the statutory conditions for a restriction of proceedings order and, if so, whether that order should continue indefinitely.

1. Application granted. The Tribunal was satisfied that Mr Bentley had habitually and persistently instituted vexatious proceedings without reasonable ground within section 33(1) of the Employment Tribunals Act 1996.

2. The Tribunal accepted the description of vexatious proceedings in H M Attorney General v Barker, [2002] SCR 1. Mr Bentley's repeated discrimination claims were self-evidently misconceived and hopeless. They had no merit or success, repeatedly caused respondents to incur the burden of responding, and persisted despite dismissals, strike-outs and costs orders. This was an abusive use of the Employment Tribunal system.

3. The fact that the claims concerned different respondents did not prevent the statutory condition being met. The pattern was analogous to the employment claims described in H M Attorney General v Roberts, [2005] All ER (D) 138: repeated applications on a like basis against different respondents may be vexatious. The number and intensity of the claims exceeded examples in which section 33 orders had been made.

4. The Tribunal made the order in the terms sought. It required Mr Bentley to obtain the Employment Appeal Tribunal's permission before instituting or continuing proceedings or making applications. An indefinite duration was necessary because the conduct was not tied to a discrete dispute capable of expiring naturally, but comprised repeated similar claims against numerous respondents.

• Employment Appeal Tribunal: On the Attorney General's application under section 33 of the Employment Tribunals Act 1996, the Tribunal granted an indefinite restriction of proceedings order. Earlier directions in the application had debarred the respondent after he failed to file a notice of appearance and supporting affidavit.