Vexatious Litigants: When the Claimant is not who they say they are

The case of David Taheri, an application to McDonald’s and the alias “James Davidson”

In an extraordinary case, an employment tribunal has found that a vexatious litigant, who was subject to a Restriction of Proceedings Order (RPO), has used an alias to make a job application to a McDonald’s and then bring a claim in the employment tribunal alleging disability discrimination, in an apparent attempt to circumvent the RPO against his actual name.

What is an RPO?

An RPO is similar to a civil restraint order (CRO) but relates to proceedings specifically in the employment tribunal and Employment Appeal Tribunal (EAT) and applies to restrict an individual’s ability to bring proceedings without the court’s permission.

The EAT may make an RPO if it is satisfied that a person has “habitually and persistently and without any reasonable ground…instituted vexatious proceedings…in an employment tribunal or before the Appeal Tribunal, and whether against the same person or against different persons” or they have made vexatious applications in any proceedings.

Please see our recent legal update Vexatious Claimants for more information on CROs and RPOs.

RPO against David Taheri

In February 2022, following an application to the EAT by the Attorney General, David Taheri was declared to be a “vexatious litigant” subject to an indefinite RPO. This meant that he would not be able to issue further employment tribunal claims unless the proposed claims do not amount to an abuse of process and where there are reasonable grounds for the proceedings. The EAT Judgment is worth a read for anyone dealing with a vexatious litigant and wondering about when an RPO might be ordered.

David Taheri’s claims: a “weaponization” of the employment tribunal process

David Taheri had a long history lodging employment tribunal claims. The EAT referenced over 40 claims with at least one claim being issued each month in 2018, save for August, with up to 3 claims issued in some months against a variety of different respondents. The EAT noted that there was “a degree of repetition” to his claims, which had very similar allegations, sought very similar sums without clear justification and adopted similar tactics. All the claims related to unsuccessful job applications. In many cases Mr Taheri had not been offered roles due to being disruptive and aggressive in interviews and assessments.

Mr Taheri would issue claims for a combination of race, age, disability or sex discrimination, value the claim for thousands (around £30,000 in some cases) and seek a considerably lower settlement from the Respondent companies as a “means of extracting a nuisance payment”. In some cases he would make spurious business appointments and telephone calls to disrupt their operations, and frequently made threats of adverse publicity and reputational damage as well as unwarranted complaints against their legal representatives, including the threat of regulatory referral.

It does not appear that any of Mr Taheri’s claims had actually been successful at a final employment tribunal hearing, with only 2 claims reaching that stage and both resulting in costs awards being made against Mr Taheri. Costs awards in the employment tribunal are the exception rather than the rule and in one such case the employment tribunal noted that Mr Taheri’s complaint of race discrimination  had been brought vexatiously “because of the extra leverage it would give…in extracting a settlement”.

Most of his claims were struck out at preliminary hearings for being vexatious or were otherwise withdrawn by Mr Taheri if the litigation did not appear to be going his way – early enough in many cases to limit his exposure to legal costs. His only appeal was ruled to be “totally without merit”.

What is concerning about the history of Mr Taheri’s claims is that many are recorded by the tribunal as settled between the parties. These are claims that reached the tribunal stage. It is not known how many businesses chose to make a payment to Mr Taheri at an early stage to prevent having to defend a tribunal claim. Mr Taheri told the EAT that his “normal approach” was to ask ACAS to seek a settlement although some companies were “so obtuse, they would dig their heels in and preferred to spend thousands on legal costs rather than settle”.

In granting the RPO, the EAT noted that there was material to suggest that Mr Taheri’s conduct during a recruitment exercise was inconsistent with the suggestion that he was genuinely seeking employment. They described Mr Taheri as having habitually and persistently, and without any reasonable grounds, “pursued proceedings that have little or no basis in law, which subject would-be employers to inconvenience, harassment and expense out of all proportion to any gain likely to accrue” to Mr Taheri and this had “involved a weaponization of the ET process that is significantly different from the ordinary and proper use of that process”.

David Taheri’s job applications to McDonald’s

David Taheri applied for a role at McDonald’s in November 2021, providing the required contact information and noting that he had worked in a Burger King in San Jose in the 1980s. At interview he disclosed that he had prostate cancer. He was rejected because of his behaviour at that interview which included telling the interviewer to “shush” while he dealt with his two mobile phones. David Taheri contacted ACAS and a certificate was issued on 8 December 2021 allowing him to lodge a tribunal claim. No claim by Mr Taheri was presented and, by the following February, the RPO was in place.

David Taheri made an application to a different McDonald’s restaurant in January 2023, giving the same contact details as previously and listing a “David Swann” as referee. By this point McDonald’s were using a chatbot through their “McHire” website to assist with the application process. Mr Taheri said that he had been previously rejected because of his age and disability. The chatbot asked if he would need assistance during the recruitment process to which he replied yes. He was told that contact would be made to discuss reasonable adjustments. He replied to say “I have cancer” which appears to have confused the chatbot causing it to reply “we don’t currently have any cancer positions open”.

Mr Taheri threatened employment tribunal proceedings and said that McDonald’s were the worst company in the world with their junk food. The chatbot confusion continued and finally David Taheri wrote “Ok, I have applied under an alias so I now have all the evidence for litigation…litigation will commence and I am contacting BBC Watchdog and the Equalities Commission”.

James Davidson’s job application to McDonald’s

James Davidson applied for a role at McDonald’s on 10 January 2023 giving the same address as David Taheri but the email address and phone number were those given for David Taheri’s referee, David Swann. James Davidson’s referee was “Dr David Taheri” with the same phone number given by David Taheri in his applications. James Davidson had also worked in Burger King in San Jose.

Unlike David Taheri, James Davidson said that he did not require assistance during the recruitment process.

The chatbot then asked James Davidson to bring to his interview evidence of his right to work in the UK, such as a passport. At this point he replied “My real name is David Taheri…I don’t have a passport…but I am David Taheri”.

The process was terminated on the basis of candidate falsification. He then alleged disability discrimination although Mr Davidson’s application had not mentioned a disability.

James Davidson’s Employment Tribunal claim

A claim was issued by James Davidson on 14 February 2023 for disability discrimination. The defence submitted pointed out that the Claimant was actually David Taheri, the proceedings had been presented in breach of an RPO, the claim was vexatious and scandalous and should be struck out with costs awarded to the Respondent.

Mr Davidson withdrew his claim around 4 hours after the defence was filed. The Respondent (a franchisee of McDonald’s) made a detailed application for its costs. The Claimant responded to this application to state, amongst other things, that the matter had nothing to do with David Taheri. The employment tribunal listed a costs hearing in person as the identify of the Claimant was in issue. The Claimant maintained that the matter had nothing to do with David Taheri and said that he was no longer resident in the UK and that to proceed without him would be a violation of his Article 6 human rights. The tribunal refused his applications for a remote hearing and the Claimant said “I will not be returning to the UK”. He was asked to supply the tribunal with identity documents but did not do so.

Was James Davidson an alias of David Taheri?

The employment tribunal found as fact that James Davidson was an alias used by David Taheri, the real Claimant. The proceedings were therefore in breach of the RPO. A costs award was made against the Claimant with the tribunal noting that the purpose of the claim was to manipulate a litigation opportunity and to “circumvent” the effect of the RPO. David Taheri wanted a rejection which he could litigate, not an offer of employment.

Tips for employers

This case raises the concerning question that the Claimant’s identity may not always be known, particularly where a claim relates to a job application where the recruitment process may not have reached the requirement to provide proof of the right to work in the UK. This in turns raises questions as to the effectiveness of an RPO where a Claimant may attempt to use an alias in order to pursue claims. In the case above, there were clear indications that James Davidson was an alias of David Taheri but this may not always be known to the Respondent or to the Tribunal in other circumstances.

• Requiring evidence the right to work in the UK at an early stage of the recruitment process may address the question of ID. If so, this should apply at the same time for all applicants and you should not then rule out applications from candidates who require permission to work in the UK.
• Checking ID against employment tribunal judgments or RPOs should not be done. This may amount to unlawful victimisation or blacklisting.
• The recruitment process should be operated fairly and consistently.
• Individuals involved in the process should have appropriate D&I training.
• If using AI or chatbots, this should be checked for inappropriate communications/decisions.
• Ensure that the process and reasons for recruitment decisions at each stage are justified and properly recorded.
• Selection should be based on objective evidence of the candidate’s ability to do the job and by reference to any job and person specification.

Employers should carefully consider any allegations or concerns raised and take advice if necessary. Not all claims are spurious but if you feel that the situation has been manipulated, settlement may not always be the best approach with a persistent litigator.

Our Employment team has considerable experience in advising businesses on the recruitment process and defending employment tribunal claims, including those involving vexatious litigants. Should you require any assistance with regards to a possible employment tribunal claim against your business, please do not hesitate to contact partner Clare Gilroy-Scott or any member of the Employment team. We are experts in this field and we are here to help.

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