At the moment, hearings at the labour and social courts are largely suspended. This is problematic in so far as it mostly concerns existential questions such as the existence of an employment relationship or a claim for wage payment as well as collective issues. These questions require a quick decision. Particularly in proceedings for protection against a dismissal there is a special duty to promote litigation according to sec 61a Labor Court Act (Arbeitsgerichtsgesetz). The period for initiating legal proceedings is only three weeks and conciliatory hearings should take place within two weeks after the action has been filed. Due to the separate conciliation hearing, no written preliminary proceedings or even a decision in written proceedings is possible. This also makes sense insofar as many proceedings before the labour court are concluded by a settlement in the oral conciliation hearing. Consequently, a suspended session has massive effects here.
In order to combat this problem, the Federal Cabinet has passed a draft law which represents an important step towards digitization during the COVID-19 pandemic. The draft provides oral hearings before labour and social courts to be possible via video conference. The law was adopted by the Federal Cabinet on 29 April 2020. The parliament will vote on it in the next few days.
Both the lay judges and the parties involved (plaintiff and defendant), their representatives and advisers (esp. lawyers), witnesses and experts can participate by simultaneous video and audio transmission. The professional judges must, however, still be present in the court room. Such a virtual hearing should be held at the request of a party (if technically possible for the court).
Likewise, the consultation and voting of the judges and the announcement of the judgement may take place by video as well. The participants must ensure that appropriate measures are taken to maintain the confidentiality of the consultation and must keep a protocol of these measures. This means that the courts must find a technically secure solution that is permissible under data protection law. How this solution should look like is still open. None of the transmissions may be recorded.
According to para. 46 sec. 2 s. 1 Labor Court Act (Arbeitsgerichtsgesetz), 128a Code of Civil Procedure (Zivilprozessordnung) a hearing by video is already possible today. However, a request is necessary for this. According to the current draft, in times of a pandemic, the law now grants a de facto right to such a video hearing. However – and this is the big problem of the new regulation – this always requires that the courts have the necessary technical equipment.
Furthermore, the Federal Labour Court and the Social Court can now also make a decision without an oral hearing even when the parties do not agree if they have heard the parties beforehand and the Regional Labour Court has rejected the appeal.
At least during the pandemic, this form of hearing can thus be a way to avoid unnecessary travel time and unnecessary physical meetings. However, this is unlikely to lead to general digitisation and a far-reaching renunciation of physical negotiations – even if all parties involved wish to do so. The technical hurdles alone are (still) very high.
article written by Tom Stiebert and Hanna Kowalski