An employment tribunal chairman has again criticised the tactics being used by the government in defending cases.
This is the second time a little over a week that a tribunal has criticised the Attorney General’s Chambers for the way it is fighting cases.
Douglas Stewart said he finds it inappropriate for the AG’s Chambers to “allege vexatious, abusive, disruptive and otherwise unreasonable conduct except where the complainant’s pleaded case falls blatantly outside what should properly be pleaded”.
He made the statement in a ruling concerning a whistleblowing case brought by Dr Kelly Elliott having previously criticised the same tactics in a case claiming race and age discrimination.
Serious Allegations
In his order, Mr Stewart stated: “Mere lack of particularity or other similar correctable flaws, per se, are no valid reason to make such a serious allegation which attributes positive and actual misconduct by the other party.”
He noted that unrepresented complainants facing such allegations are often intimidated into withdrawing “potentially bona fide arguments”.
The chairman also emphasised his duty to ensure a level playing field, stating: “It is my obligation under Rule 7 to try to ensure that it is no more out of kilter than is inevitable.”
He rejected an application by the respondent, Manx Care, to strike out Dr Elliott’s case for lacking detail, confirming she had complied with tribunal rules.
Frequency
In his judgement, Mr Stewart said: “With increasing frequency over the past year or more, Complainants have been faced with challenges of being struck out including by the Respondent contending under Rule 40 that their Complaint is vexatious, abusive, disruptive and their conduct is otherwise unreasonable.
“In addition, such Complainants are being warned that if the Respondent is successful, then costs would be sought against them.
“There is nothing in the Rules that requires Manx Care to make the point that, under Rule 40(2) awarding costs is not the norm in this Tribunal.
“Accordingly, a typical Complainant has the immediate burden of being intimidated by an allegation of vexatious misconduct and fearful that costs may be awarded against them.
“In consequence, some litigants in person have given up what they have perceived to be an unequal struggle when proceeding against Manx Care so that potentially bona fide arguments have been abandoned and the Complaints withdrawn.”
You can find the full ruling here.
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