United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Applicant	MR A TOLLEY (of Counsel) Instructed by: The Treasury Solicitor (Employment Team) Queen Anne's Chambers 28 Broadway London SW1H 9JHS
For the Respondent	MR O F AYOVUARE The Respondent in person


 


THE HONOURABLE MR JUSTICE KEITH

1. This is an application by the Attorney General, pursuant to section 33 of the Employment Tribunals Act 1996, for a restriction of proceedings order against the Respondent, Mr Omorutu Ayovuare. A total of 57 claims brought by Mr Ayovuare since 1997 in employment tribunals (and in industrial tribunals as they used to be called) have been identified by the Attorney General so far. The average is therefore between 9 and 10 claims a year. But there may have been more. Mr Ayovuare referred to 65 claims in para. 13 of the affidavit he has sworn in these proceedings and to 72 claims in para. 27 of his affidavit. Both the numbers he gives may include appeals to the Employment Appeal Tribunal, which have been included in the 57 claims identified by the Attorney General so far.
2. Mr Ayovuare is a black African. His claims have a consistent pattern. They are all complaints of either racial discrimination or victimisation or both. The background to each claim was an application by Mr Ayovuare for a job in the field of quantity surveying or contract management, being fields in which he has a number of academic qualifications. As and when his applications were refused, he brought claims for racial discrimination against the prospective employers. He frequently made subsequent applications to the same prospective employers, and if he had instituted proceedings against that employer in the past, he frequently claimed victimisation in addition to racial discrimination if his subsequent application was refused.
3. This pattern of behaviour has not happened on every occasion on which his application for a job has been refused. He claims that he has made about 700 applications for jobs, and if that is right, he has commenced proceedings only in about 10% of the cases in which those applications have been refused. The Attorney General is, of course, not in a position to dispute Mr Ayovuare's assessment of the number of jobs which he has made unsuccessful applications for. But whatever the correct percentage is, it has to be said in Mr Ayovuare's favour that he must have made some selection as to which unsuccessful job applications should be the subject of claims for racial discrimination and victimisation and which should not. Having said that, he told us that he would apply four or five times to the same employer for a job before he made a claim for racial discrimination against that employer.
4. Mr Ayovuare drafts all his complaints in a similar way. In his originating application, he sets out his work experience and his qualifications. He then identifies the particular advertisements or the recruitment exercise to which he responded. He then states the outcome of his application, for example whether his application was refused without an interview or following an interview. And he then alleges that he has no choice but to ask the employment tribunal for a ruling that he may have been discriminated against on racial grounds contrary to section 4(1)(c) of the Race Relations Act 1976. No case has been identified in which, before instituting proceedings, Mr Ayovuare submitted a Race Relations Questionnaire, or inquired what the outcome of the recruitment exercise had been. On a number of occasions, it turned out that no one was appointed as a result of the recruitment exercise in question. It has also occasionally turned out that the successful applicant was himself or herself from an ethnic minority, and sometimes even from the same ethnic minority as Mr Ayovuare.
5. Two schedules have been prepared for the purposes of this application. The first is a schedule setting out details of the 46 claims made by Mr Ayovuare, for which the Attorney General has been able to obtain some documentation. The schedule assigns each of the 46 claims a number. It identifies when the claim was instituted and in which employment tribunal. It gives the claim number, the parties and the nature of the claim. And it contains a summary of the outcome of the case or the current state of the litigation. Apart from nos. 24 and 25, the schedule is in chronological order. The second schedule is a chronology, and sets out in chronological order the dates of significant events in each of the 46 claims.
6. In addition to the 46 claims for which the Attorney General has been able to obtain some documentation, there are a further 11 claims for which he has not. The existence of those claims was revealed to the Attorney General by the Respondents to some of Mr Ayovuare's claims. Although the Attorney General does not have any documentation relating to those claims, he has identified against whom the claims were brought, each of the claim numbers, and in some instances the employment tribunal in which the claims were brought.
7. The relevant legal principles for the determination of applications of this kind are well established. In determining applications under section 33, the Employment Appeal Tribunal has in the past applied the parallel jurisprudence governing the making of civil proceedings orders under section 42 of the Supreme Court Act 1981. Attorney General -v- Wheen [2000] IRLR 461 is an example of that, and the Employment Appeal Tribunal's approach was upheld on appeal by the Court of Appeal (see [2001] IRLR 91). The broad approach, as set out in Attorney General -v- Barker [2000] 1 FLR 759, is as follows. Before making a restriction of proceedings order, the Employment Appeal Tribunal must be satisfied that the statutory preconditions for the making of the order have been fulfilled, namely that the person against whom the order is sought has habitually, persistently and without any reasonable ground instituted vexatious proceedings or made vexatious applications, whether in the employment tribunal or in the Employment Appeal Tribunal, and whether against the same person or against different persons. If that condition has been satisfied, the Employment Appeal Tribunal may make a restriction of proceedings order but it is not obliged to do so. The exercise of the Employment Appeal Tribunal's discretion will depend on its assessment of where the interests of justice lie, taking into account on the one hand a citizen's right to invoke the jurisdiction of the employment tribunal, and on the other the need to provide prospective employers with a measure of protection against abusive and ill-founded claims.
8. The countervailing need to protect potential employers from being harassed by the worry and expense of vexatious litigation was highlighted in Attorney General -v- Jones [1990] 1 WLR 859, as was the need to protect the resources of the judicial system. They were described in Jones as being barely sufficient to afford justice without unreasonable delay to those who have genuine grievances, and those resources should not be squandered on those who do not. This theme was taken up by the Employment Appeal Tribunal in Wheen at paragraph 11 in the context of proceedings in the employment tribunal. It follows, therefore, that although the making of a restriction of proceedings order is a drastic restriction of a person's civil rights, the time may come when it is necessary to make one.
9. We deal first with whether the stream of litigation which Mr Ayovuare has commenced can be described as having been instituted habitually and persistently. In Barker it was said that habitual and persistent litigation usually involves one or more of the following features. The litigant sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon. Or the litigant relies on essentially the same cause of action, perhaps again with minor variations, after it has been ruled upon in actions against successive parties who, if they were to be sued at all, should have been joined in the same action. That is not this case, because Mr Ayovuare's claims relate to different acts of discrimination and victimisation, and therefore to different causes of action. But the essential vice of habitual and persistent litigation is keeping on litigating when earlier litigation has been unsuccessful and when, on any rational and objective assessment, the time has come to stop.
10. In Barker the automatic challenge of every decision by way of appeal, and the refusal to take notice of, or to give effect to, orders of the Tribunal were also said to be the hallmarks of the habitual and persistent litigant. Those particular hallmarks are not really present here. Mr Ayovuare instituted appeals in only five claims (nos. 4, 9, 12, 14 and 19), and costs orders have been ignored in only two cases (nos. 35 and 40). Moreover, it cannot be said that MrAyovuare's claims should all have been joined together in the same claim. But the essential vice of habitual and persistent litigation is present here, namely the repeated reliance on identical allegations, albeit against different prospective employers, despite the almost invariable failure of earlier litigation, being a course of conduct which in Mr Ayovuare's case was driven by his refusal to accept that colour or ethnic origin played no part in the decisions to refuse his various applications for jobs.
11. While it may have initially been legitimate for Mr Ayovuare to bring claims for racial discrimination, either because there had been no explanation for his treatment or because he had reasonable grounds for not believing such explanations as he had been given, the fact is that almost all his claims were subsequently rejected. Despite that, he continued to allege racial discrimination against many prospective employers, regardless of the outcome of the recruitment process, regardless of whether an explanation had been given for the refusal of his application, and regardless of the nature of that explanation. Indeed, in one case (no. 40), the Tribunal noted in its reasons that Mr Ayovuare had said in evidence that whenever his application for a job for which he met the basic criteria was unsuccessful, he believed that his application had been refused on grounds of race.
12. In addition, a number of prospective employers have been the subject of multiple claims by Mr Ayovuare. Six claims have been brought against Railtrack PLC (nos. 14, 26, 36, 37, 39 and 42), and three claims have been brought against the London Borough of Camden (nos. 35, 43 and 46), Circle 33 Group Ltd (nos. 40, 42 and one other not yet identified but referred to in no. 40), the Laing Partnership PLC (nos. 15, 17 and 18) and the Samuel Lewis Trust (nos. 1, 24 and one other not yet identified). With the exception of the three claims against the Laing Partnership PLC (which were all heard together), in the case of every prospective employer who has been the subject of at least three claims, the second, third and subsequent claims were commenced after the first claim had already been dismissed or withdrawn.
13. In these circumstances, we have concluded that the litigation which Mr Ayovuare has commenced can properly be described as having been instituted habitually and persistently.
14. We turn to whether the proceedings which Mr Ayovuare has commenced were vexatious and were instituted by him without reasonable grounds. Vexatious proceedings were said in Barker to be proceedings which have one or more of the following hallmarks. They will have little or no basis in law, or at least no discernible basis. Whatever the intention of the proceedings may have been, their effect will be to subject the respondent to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the applicant. And they will involve an abuse of the process of the tribunal, i.e. the use of the tribunal's process for a purpose or in a way which is significantly different from the ordinary and proper use of the tribunal's process.
15. This is plainly not a case in which there is no discernible basis in law for Mr Ayovuare's claims. They all allege causes of action recognised by the law, namely racial discrimination and victimisation. But the making of many claims of discrimination can still found an application for a restriction of proceedings order (see Wheen in the Employment Appeal Tribunal at para. 9), and the other hallmark of vexatious proceedings, i.e. proceedings brought without reasonable grounds, is present here. Our primary reason for saying that is that Mr Ayovuare's claims have been spectacularly unsuccessful. Of the 46 claims set out in the first schedule, 30 were dismissed or were withdrawn. Of that 30, 23 were dismissed following a hearing on their merits (nos. 1, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16,17, 20, 23, 24, 26, 33, 36, 37, 40 and 41).
16. We interpose to say two things here. First, Mr Ayovuare says that in 99.9% of these cases the employment tribunal got it wrong. However, it is not for the Employment Appeal Tribunal on this application to review the correctness of those decisions of the employment tribunal (see Jones at p. 863D-E). Secondly, in fairness to Mr Ayovuare, it should be said that in one of those 23 cases (no. 7), the tribunal said that the Respondent had brought the case on itself, and that Mr Ayovuare had been wholly justified in making and pursuing his complaint; and in another (no. 12), an application for costs against Mr Ayovuare was refused because his claim was said to be "certainly not lacking in merit".
17. Of the remaining 16 claims, the outcome of 13 of them remains unknown. Of those 13, eight have been the subject of enquiries which have not yet revealed their outcome (nos. 21, 25, 27, 28, 30, 32, 34 and 38), and five had been instituted too recently for them to have been concluded by the time this application was lodged (nos. 42, 43, 44, 45 and 46). In only three of the 46 claims set out in the first schedule did Mr Ayovuare achieve any measure of success. One of them was settled on terms unknown to the Attorney General (no. 6), and one of them was settled on payment of £1,000.00 to Mr Ayovuare (no. 22), though the Respondent in that case has said that it settled the claim purely in order to avoid the administrative and legal costs of defending it. The one claim which resulted in a finding in favour of Mr Ayovuare after a hearing on its merits was one in which the Respondent was found to have victimised him for refusing him an interview after he had made previous complaints of racial discrimination, for which he was awarded £1,000.00 for injury to his feelings (no. 18). However, at the same time, the Tribunal had dismissed two claims of racial discrimination (nos. 15 and 17), and one of those claims was the claim on which the claim for victimisation had been based.
18. For obvious reasons, the Attorney General is unaware of the outcome of the 11 claims for which he has no documentation, but it should be stated that Mr Ayovuare claims that one of those claims, namely one which he brought against the London Borough of Greenwich, was successful, though he says that that was a claim of unfair dismissal.
19. Nor has Mr Ayovuare fared any better in the five cases in which he brought appeals. Three of the appeals were dismissed at preliminary hearings (nos. 9, 12 and 14). Indeed, in one of them (no. 14), Mr Ayovuare had made a number of allegations of bias against the chairman of the employment tribunal. The Employment Appeal Tribunal said that those allegations should not have been made and were wholly without merit. Of the two other cases in which Mr Ayovuare lodged an appeal, the appeal was withdrawn on agreed terms in one of them (no. 4). The Respondent has said that in order to avoid further costs it agreed not to pursue the order for costs to be assessed which it had obtained in the employment tribunal if Mr Ayovuare withdrew his appeal. The one remaining appeal related to a case in which Mr Ayovuare left the tribunal building before the claim was called on and it was dismissed in his absence without a hearing on its merits (no. 19). However, that appeal has been allowed to proceed to a final hearing only on the issue of whether the employment tribunal should have made an order for costs in Mr Ayovuare's absence. The outcome of that appeal is not known to the Attorney General.
20. There are three other points which we have already referred to, but which are relevant to whether the proceedings commenced by Mr Ayovuare were vexatious and instituted by him without reasonable grounds. First, there were the four occasions on which employment tribunals have marked their disapproval of Mr Ayovuare's conduct by making costs orders against him (nos. 4, 19, 35 and 40). Secondly, we have commented on the fact that a number of prospective employers have been the subject of multiple claims. Thirdly, we have already noted Mr Ayovuare's practice of starting proceedings without making any attempts to ascertain in advance whether they have any realistic prospect of success. We refer, of course, to the absence of Race Relations Questionnaires or inquiries about the outcome of the recruitment exercise.
21. There is one other point which we wish to make. Whatever Mr Ayovuare may have intended by bringing these various claims, the effect of the institution of them has been to subject the Respondents to not inconsiderable inconvenience and expense. The very limited powers of employment tribunals to award costs, and the practical difficulties of enforcing any such awards on the rare occasions on which they are made, has meant that there has been little in the past to deter Mr Ayovuare from continuing with his campaign of litigation, especially as there is no charge for filing a claim with an employment tribunal. We refer to the history of his litigation as a "campaign" because, to use the words of Mr Adam Tolley for the Attorney General in his skeleton argument, "[t]here are clear indications that Mr Ayovuare perceives himself to be fighting single-handedly against what he regards as unbridled racism in society in general and that he treats litigation as his weapon in that 'war'. Mr Ayovuare's affidavit in opposition to this application makes this stance plain. Yet the employment tribunals do not exist to enable individuals to conduct campaigns on matters of particular importance to them, but to resolve legitimate disputes between the parties."
22. The fact that Mr Ayovuare regards all institutions with which he comes into contact as infected by racism is borne out by two particular features of the case. First, in two of his appeals to the Employment Appeal Tribunal (nos. 14 and 27), he alleged either that the chairman of the employment tribunal had been biased against him on racial grounds or that all-white panels are prejudiced against him. Secondly, in his affidavit in these proceedings, he has made wide-ranging criticisms in intemperate language of racism on the part of employment tribunals, the Employment Appeal Tribunal, the Attorney General and his own advisers. In all the circumstances of the case, although Mr Ayovuare's limited success on some rare occasions has caused us to think long and hard about the appropriateness of making a restriction of proceedings order, we have concluded that the proceedings which Mr Ayovuare has commenced in the past were vexatious and instituted by him without reasonable grounds.
23. We turn, finally, to the exercise of our discretion. We are, of course, very much alive to the difficulties facing applicants in cases of racial discrimination. An applicant's position has been improved by the recent incorporation into the Race Relations Act of the equivalent of section 63A of the Sex Discrimination Act 1975. It is now section 54A of the Race Relations Act. But the fact remains that direct evidence of discrimination will rarely be available, and applicants have to rely for the most part on facts which are only known to the employer or the prospective employer. That was recognised in King -v- Great Britain-China Centre [1992] ICR 516 which laid down what the Tribunal's evidential approach in cases of discrimination should be. If a prospective employer fails to answer a Race Relations Questionnaire adequately or to respond to reasonable enquiries about an applicant's treatment, an applicant may be left with little alternative but to commence proceedings, if only to find out what the explanation for his treatment is said to be. However, we have said enough, we hope, in this judgment to show that Mr Ayovuare's case is very far from that. We are satisfied that his conduct has gone well beyond the legitimate exercise of his statutory rights and has become a misuse and abuse of the employment tribunal system, and that a restriction of proceedings order would not be a disproportionate response to that abuse.
24. A restriction of proceedings order will not, of course, prevent Mr Ayovuare from pursuing those claims which the Employment Appeal Tribunal thinks he should be able to pursue. The effect of a restriction of proceedings order is simply to prevent him from instituting or continuing proceedings without the permission of the Employment Appeal Tribunal. If the Employment Appeal Tribunal is satisfied that the proceedings are not an abuse of the Tribunal's process and that there are reasonable grounds for those proceedings, the Employment Appeal Tribunal will give Mr Ayovuare permission to commence or continue them.
25. But for these reasons, we have concluded that the balancing exercise which we must conduct between Mr Ayovuare's right to invoke the jurisdiction of the employment tribunal and the need to protect prospective respondents from abusive and ill-founded claims comes down in favour of making the restriction of proceedings order against Mr Ayovuare. That order will be without restriction of time.