The (temporary) future of labour courts – Could Covid-19 drive the digitalisation of the labour court system?

The (temporary) future of labour courts – Could Covid-19 drive the digitalisation of the labour court system?

Covid-19 affects all areas of society and does not stop at court proceedings. On the contrary, oral hearings have been cancelled across the board because of the coronavirus crisis. This leads to serious disadvantages for the parties involved in the proceedings, such as employers and employees in proceedings against dismissal, particularly in the case of employment and social security proceedings which are often of an urgent nature. The situation could be helped by the use of modern means of communication (e.g. video conferencing), which are currently only legally admissible to a very limited extent. Purely virtual court hearings are not yet possible.

This problem is addressed in the ministerial draft of the Federal Ministry of Labour and Social Affairs dated 9 April 2020 (COVID-19 ArbGG/SGG-AnpassungsG) in the event of an epidemic situation of national significance within the meaning of section 5 of the Infection Protection Act, as the Bundestag established on 25 March 2020. The ministerial draft contains an initial proposal for a temporary Labour Court System 2.0.

Legal situation to date

Until now, labour court proceedings have been characterised by oral hearings taking place with the physical presence of all parties to the proceedings. So far, pursuant to section 46(2) German Labour Courts Act (ArbGG) in conjunction with section 128a(2) of the German Code of Civil Procedure, there is merely the opportunity for the parties, if they agree, to be present in a place other than the courtroom and to be connected by video conference.

In addition, the principle of oral hearing applies in labour proceedings, which is manifested in the ‘conciliation hearing’ held prior to the written proceedings pursuant to section 54(1)(1) German Labour Courts Act; it is not possible to order written preliminary proceedings in accordance with section 276 German Code of Civil Procedure. In the case of proceedings against dismissal, which are normally especially urgent, the conciliation hearing provided for in section 61a(2) German Labour Courts Act is to take place within two weeks of the date on which the action was brought (special obligation to expedite proceedings). Experience has shown that the vast majority of proceedings are already settled by court settlement at the conciliation hearing. 

In addition, in all judicial proceedings pursuant to section 169(1) first sentence German Judicature Act (GVG) (section 52(1) 1st sentence German Labour Courts Act), the principle of public access is applicable, i.e. any interested citizen, including journalists in particular, may attend the oral hearing in the courtroom. Exclusion of the public is currently admissible only in very limited number of cases, such as in cases of threats to state security, protection of witnesses, a threatened breach of private secrets or for the protection of minors.

Planned changes to labour court proceedings 

The current situation, especially in employment court proceedings, means that effective legal protection of employees and employers is no longer fully guaranteed, since no court decision can be made without an oral hearing. In this respect, the ministerial draft tries to remedy the situation by introducing a new section 114 to the German Labour Courts Act. It reads:

“Section 114
Protection against infection in epidemic situations of national significance

(1) By way of derogation from section 128a of the Code of Civil Procedure, in the event of an epidemic of national significance in accordance with section 5 of the Infection Protection Act, the lay judges may attend an oral hearing from another place. The images and audio of the hearing will also be transmitted to this place at the same time. The same applies to advice and coordination. Participants in the advice and coordination shall take organisational measures to ensure the confidentiality of the advice; the relevant determination shall be recorded.

(2) By way of derogation from section 128a of the Code of Civil Procedure, the labour courts may order, in the event of an epidemic of national significance in accordance with section 5 of the Infection Protection Act, that the parties, their counsel and advisers, as well as witnesses and experts, attend an oral hearing from another place, provided that they can reasonably maintain the technical conditions for the transmission of images and audio. The hearing will also be transmitted to this place at the same time in images and audio. The decisions referred to in the first sentence shall be the subject of an immediate appeal. It shall be lodged within a peremptory term of one week from the date of notification of the decision.

(3) By way of derogation from section 52, the courts for employment matters may exclude the public from the proceedings before the court hearing the case where, as a result of an epidemic situation of national significance under section 5 Infection Protection Act, the necessary protection of health cannot otherwise be guaranteed.

(4) If, in the event of an epidemic situation of national significance under section 5 of the Infection Protection Act, the Regional Labour Court makes a decision without a hearing in accordance with section 128(2) of the Code of Civil Procedure, pronouncement shall be replaced by service of the judgment.

(5) By way of derogation from the first sentence of section 128(2) of the Code of Civil Procedure, in the event of an epidemic situation of national significance under section 5 of the Infection Protection Act the Federal Labour Court may make a decision without an oral hearing after prior consultation even without the consent of the parties. It shall determine as soon as possible the date by which written submissions may be submitted. If, in the event of an epidemic situation of national significance under section 5 of the Infection Protection Act, the Federal Labour Court makes a decision without an oral hearing, pronouncement shall be replaced by service of the judgment.”

Similar rules are to be introduced for the social justice system. The following amendments are therefore now under discussion in the labour court proceedings:

Lay judges working from home

Lay judges may attend an oral hearing from another place. Deliberation by the lay judges and the presiding judge shall take place by video conference, while respecting the confidentiality of the deliberations. 

Involvement of parties, counsel and witnesses

To date, the parties and their lawyers may also attend the oral hearing from a place other than the courtroom, but only to the extent that they agree. This agreement will no longer be essential: What is new is that the labour court may order the parties, counsel, witnesses and experts to attend the proceedings from another place, provided that they can reasonably establish the technical setup. 

Exclusion of the public

Criticism (which was excessive in some cases) of the ministerial draft has been triggered by the fact that according to the draft, the labour court can exclude the public if health protection cannot otherwise be guaranteed. This criticism is not justified in the extent that it has been expressed. The ministerial draft states that the public may only be excluded if other health protection measures, such as the separation of chairs in the courtroom, are not possible. However, depending on the layout of the courtroom, measures which may be taken in that location will not be sufficient to ensure health protection. In contrast to this there is the parties’ right to effective legal protection and the fixed obligation to support proceedings in actions against dismissal. 

If you look at the everyday life of the courts until the coronavirus crisis, there were many hearings in the labour courts every day, but not a lot of people attending in the courtroom. Therefore, in the vast majority of proceedings the exclusion of the public will remain more of a theoretical power of the labour court, rather than being applied in practice. However, for these practical reasons, it will also be possible to think about removing this part of the draft.

Waiver of oral hearings 

In addition, the regional labour courts may, with the consent of the parties, make decisions without an oral hearing. The Federal Labour Court will even be able to decide without an oral hearing without the consent of the parties.

Is technical feasibility an insurmountable hurdle?

If the technical conditions are absent in the majority of cases, the planned legislative change would miss the mark in practice. The prerequisite is that all participants have a high-performance internet connection and a computer equipped with webcam, microphone and loudspeakers in order to be able to sensibly use secure video telephony software. 

The ministerial draft takes account of this problem with regard to the parties, their counsel and advisers as well as witnesses and experts by making the use of appropriate technology conditional on the aforementioned persons “[being able to] maintain the technical conditions for the transmission of images and audio in a reasonable manner”. This will not always be the case, especially for private individuals in their home environment.

• Depending on the region, a high-performance internet connection is likely not to be available. This is even truer in German private households, especially at a time when domestic connections are being used as never before by many families living and working in their homes.
• Nor can all parties involved in the process be required to have the technical means at their disposal and to be able to use them professionally. 
• This can be expected of a lawyer, however. It is therefore possible that the client and their lawyer can attend the hearing from the lawyer’s office, with the necessary social distancing for safety.

What the ministerial draft implicitly assumes is that the labour courts have the technical setup and can also use it professionally. However, it is by no means clear that each labour court has the technical means in each courtroom to hold the hearing as a video conference and that this applies even if all divisions and senates hold hearings at the same time. It is also unclear how the public should follow such hearings. Not all courtrooms are equipped with screens, projectors, etc.

Extended period for bringing actions in the event of dismissal

In addition to the outlined changes to procedural law, it is planned that employees, after receiving the notice of dismissal, will have five weeks instead of the current three weeks to bring an action against dismissal. It is doubtful whether this is necessary in the light of section 5 German Protection against Dismissal Act, which allows for subsequent filing of a lawsuit in the event of a non-culpable delay.

Conclusion

In theory, the technical possibilities of setting up virtual courtrooms, which the parties to the trial or proceedings can join and attend the hearing from anywhere in the world, already exist today. In practice, however, it is likely that this will often be impossible due to a lack of technical equipment among the parties and labour courts. It remains to be seen, therefore, to what extent the labour courts will make use of the possibility of enforceable proceedings by video conference, if these are actually introduced. On the other hand, although the changes will initially be limited to 31 December 2020, they could trigger a broad debate on digital justice in the 21st century.