By Kwabena Appenteng
At least once a month, I receive a new case file from a client, review the complaint or charge of discrimination and confusedly exclaim, "Are you serious?"
Although every litigator is called upon to represent their clients against vexatious, groundless lawsuits at some point, the continuous rise in employment litigation coupled with the understandable anger people feel when they are terminated by their employer has led to employment lawyers and our clients dealing with an increasing number of these eyebrow-raising lawsuits.
An avalanche of employment litigation is also being felt by my colleagues in the U.K., who have similarly been forced to deal with an escalating number of plausible and implausible termination-related lawsuits over the past few years. Thanks to the British government, however, life for these employment lawyers and their too-often sued clients may soon change.
On April 6, the British government announced that a terminated employee will only be able to file an unfair dismissal claim against his or her employer after two years of employment.
Thus, under these new provisions, an employee who is hired pursuant to a 23-month employment contract will be unable to file an unfair dismissal claim against his or her employer at the cessation of his contract term and will only be able to sue his or her employer if they are alleging some form of discrimination.
For employers and their lawyers, the changes appear to be a godsend. The new procedures allow employers to hire and fire employees within a two-year window and not worry about facing the employees' ire in the form of a lawsuit weeks after. Similarly, the employment tribunals that handle employment claims in the U.K. will also be dealt a reprieve, as the 218,000 claims that were filed in 2010-2011 are expected to decrease.
In theory, the changes appear to be a foolproof way to promote judicial economy, spur employment and aid the economy. In reality, however, the new provisions threaten to expose employers and tribunals in the U.K. to duplicitous, costly claims.
The threat posed by the new provisions is best illustrated by envisioning what would happen if such a rule was to be adopted in the U.S. Akin to the U.K., employees in the U.S. are able to immediately file a claim against their employer for employment discrimination with the Equal Employment Opportunity Commission (EEOC). Employees who are employed pursuant to a contract and allege that their termination did not conform to the terms of the contract, but was not discriminatory, are able to file their claim in court.
As a result of the new rules, however, these employees would only be able to file such a lawsuit against their employer if they have been employed for two years. Employees who have not been employed for this threshold amount of time, but want to sue their employer nevertheless, will be forced to explore trying to couch their claim as one of discrimination in an effort to sustain it. Eventually, the EEOC, which reported receiving 99,947 claims of discrimination last year, would see the number of claims it is forced to handle skyrocket and, in turn, the federal courts responsible for handling the EEOC claims that matriculate into lawsuits would see its dockets expand. This, critics say, is what the U.K. is faced with.
Yet, despite this, the driving public policy considerations behind the U.K.'s changes are hard to denounce. Whether here or across the pond, this much is true: Employment-related lawsuits are on the rise. The British media says that employment claims in the U.K. have risen 173 percent in five years and in the U.S. the EEOC reported a 21 percent increase in the past five years.
Although the source of these dramatic increases is easily traceable to the cataclysmic global downturn we have experienced since 2007, the issue of if and how to deal with the corresponding increase in termination-related lawsuits is not so easily answered. In view of this, the British government's new policy should be applauded, as they have taken a risk and implemented a way to tackle an obviously growing problem.
On the other hand, the actions in the U.K. may have just exacerbated an already growing problem that cannot, and should not, be tackled, as employees should have an unfettered right to challenge their employer's decision to terminate them to the extent possible. This is the argument that I, as an "American" lawyer, subscribe to.
The freedom that individuals within the U.S. have to seek redress within a court of law is unparalleled. By erecting additional barriers to enter the courthouse, such as a requirement of two years of employment, the landscape of the civil litigation system is altered and this freedom is eroded, even if only in part. As much as I resent the baseless lawsuits that are frequently filed against my clients, this is also the reason that I immigrated to America to practice law and respect this country's civil justice system. And so while many of my colleagues in the U.K. celebrate the enactment of the new provisions, I celebrate the fact that we do not have an equivalent over here.