The (temporary) future of labour courts – No revolution after all – an update

The ministerial draft by the Federal Ministry of Labour and Social Affairs dated 9 April 2020 (COVID-19 ArbGG/SGG-AnpassungsG) set out comprehensive options for holding oral hearings without the physical presence of all parties to the proceedings and excluding the public. See our report.

After significant criticism, excessive in some cases, of the ministerial draft, the Ministry has toned down (in the critics’ view) the planned new provisions with a ‘Drafting Aid for the Coalition Factions’ dated 27 April 2020. The new section 114 Labour Courts Act to be introduced is now worded as follows:

 ‘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(1) first sentence of the Infection Protection Act, the court may officially permit one lay judge to attend an oral hearing from another place if it is unreasonable for him to attend the court in person due to the epidemic situation. The images and audio of the hearing shall be transmitted simultaneously to the other place and to the courtroom. The transmission shall not be recorded.

(2) Subsection 1 shall apply mutatis mutandis to the advice, coordination, and pronouncement of the decision. The first sentence shall also apply if the decision is made without an oral hearing. Participants in the advice and coordination shall take suitable measures to ensure the confidentiality of the advice; the measures taken shall be entered in the record.

(3) The court shall officially permit the parties, their counsel and advisers in an epidemic situation of national significance in accordance with section 5(1) first sentence of the Infection Protection Act, in the case under section 128a of the Code of Civil Procedure, to attend an oral hearing from another place and to perform procedural acts there by way of simultaneous transmission of image and audio. Subsection 1 shall apply mutatis mutandis to the questioning of witnesses and experts.

(4) By way of derogation from section 128(2) first sentence of the Code of Civil Procedure the Federal Labour Court can, in an epidemic situation of national significance in accordance with section 5(1) first sentence of the Infection Protection Act, after prior hearing even without the consent of the parties, hand down a decision without an oral hearing if the regional labour court has dismissed the appeal. Section 95 shall remain unaffected.’

Lay judges can work from home only if unreasonable to attend court

While according to the ministerial draft lay judges could, at their own discretion, attend the oral hearings from a place other than the courtroom, this is now only to be possible if, because of the epidemic situation, it is unreasonable for them to appear before the court. It is doubtful that there can be an unreasonable situation as long as court proceedings are held and public transport is still running. At most, individual cases can be envisaged, e.g. an honorary judge who is part of a high-risk group and therefore does not wish to leave his home.

Involvement of parties, counsel and witnesses

While the ministerial draft stated that the labour court could order the parties, counsel, witnesses and experts to attend the proceedings from another place, provided that they could reasonably establish the technical setup, this is now only to be possible with the agreement of the parties. However, if the parties or others so request, the court is to order this. According to the government’s reasoning, the court should do so on its own initiative, if necessary. The aim is to promote the use of video conferencing technology.

Public not excluded

Contrary to what was provided for in the ministerial draft, the labour courts can no longer exclude the public. The exclusion of the public in particular had triggered harsh criticism. 

Waiver of oral hearings only for the Federal Labour Court 

It is still provided that the Federal Labour Court will be able to decide without an oral hearing without the consent of the parties. On the other hand, the regional labour courts, contrary to the original draft, cannot waive oral hearings, even with the consent of the parties.

Extended period for bringing actions against dismissal

The extended period giving employees five weeks after receiving the notice of dismissal, instead of the current three weeks, to bring an action against dismissal, has been completely removed. Given the existing option of the subsequent filing of a lawsuit in the event of a non-culpable delay, it was doubtful whether this amendment was necessary in any case.

Conclusion

What was planned as a (small) digital revolution in labour court proceedings and could have been a test run for digitalisation of justice in the 21st century is at first glance ‘only’ an extension of the existing possibilities under section 46(2) Labour Courts Act in conjunction with section 128a(2) Code of Civil Procedure. But it is more than that: precisely the addition of ‘shall’ in section 128a(3) Code of Civil Procedure (new version), in contrast to ‘may’ in the current section 128a Code of Civil Procedure, makes the digitalisation of the labour court system more the rule than the exception, which is an important step towards the labour courts of the future.