Yes to more video hearings!

February 2022 · Estimated read time: mins

In der arbeitsgerichtlichen Praxis werden die Möglichkeiten des Prozessrechts noch zu zögerlich genutzt

Imagine the following situation: The chamber of the labor court sits in the courthouse, the attorneys as counsel of record are in their offices, and the parties are in their respective companies or even at home. Can a labor court hearing take place in this setting? The clear answer is: yes!

Unbelievable, but true: The German Code of Civil Procedure (ZPO) has allowed video hearings in principle since 2002. However, procedural law is much more advanced in this respect than labor court practice.


What is legally possible?

The labor court may, upon request or ex officio, permit the parties, their proxies and assistants to stay at another location during oral proceedings and to perform procedural acts there. The hearing shall be transmitted simultaneously in video and audio to this location and to the hearing room (Section 128a (1) of the Code of Civil Procedure). Whether or not a video hearing takes place is at the discretion of the court, whose decision in this regard is not subject to appeal (Section 128a (3) sentence 2 ZPO).

Even if a video hearing is permitted, the parties to the proceedings are free to appear in the courtroom "nevertheless".


Advantages of video negotiation

The advantages of video negotiation are manifold. Travel times and costs for lawyers and parties are eliminated. Video hearings also strengthen the economy of litigation. Scheduling is easier for the courts. Lawyers can easily attend several appointments on the same day, at different courts and completely independently of the specific location of the court in each case. Witnesses and experts no longer have to travel. All of this speeds up proceedings and is in the interest of all parties involved.

Particularly in the current pandemic, video hearings have also helped to maintain the functioning of the judiciary. Without video hearings, many trials would have been delayed by many weeks during the lockdown. Last but not least, video hearings reduce the risk of downtime due to illness in courts, law firms and companies. In this context, the Duesseldorf State Labor Court has clarified: Video negotiations are also possible from a private home, but not from the pub, the swimming pool or the soccer field (ruling dated January 13, 2021 - 12 Sa 453/20).


What does it look like in practice?

Our experience with video negotiations has been very positive. Some labor courts even actively promote video hearings and transparently explain the legal and technical requirements. Unfortunately, the labor courts are still very cautious in this regard. The reasons for refusing video hearings are diverse, sometimes strange and curious.


Best-of reasons for rejection

In Bavaria, labor courts rejected several video hearings without any justification. 

A labor court in Hesse reported that it did not have the technical equipment to conduct video hearings in compliance with the requirement of publicity when the parties and their representatives are in a location other than the court's hearing room. From a legal point of view, the required publicity (Section 169 (1) sentence 1 GVG) is also established in the case of video hearings at the place of the court. The only decisive factor was the lack of video technology.

In some places, it seems that the following applies within the courts: first come, first served. One chamber of a North Rhine-Westphalian labor court has been hearing cases exclusively by video for months, while another chamber of the same court rejects every request due to a lack of technical equipment. This is not understandable.

Regional labor courts recently pointed out that there is no obligation on the part of the judiciary to provide technical equipment with a view to the requirements of a procedurally clean video hearing. There is also no entitlement to the provision and/or use of video technology. This is legally correct. It is regrettable, however, that these defensive arguments lack the will for (more) video hearings. 

Encouragingly: In North Rhine-Westphalia, a state labor court recently offered video hearings on its own initiative and even made it possible for students to participate digitally for teaching purposes.

The responsible office of a labor court states that it lacks the technical equipment. In exactly the same proceedings, however, the presiding judge gave a different reason for his rejection. A video hearing would entail the loss of the neutral atmosphere of the court session, which is essential for the hearing. In addition, the hearing - according to the labor court - would be made more difficult by the loss of nuances of non-verbal communication. Also, due to the lack of personal presence, the direct personal impression of the parties would be missing. This is not really convincing. This was a conciliation hearing. In the vast majority of conciliation hearings - including this one - the parties are not present anyway. The court would not have and did not get a personal impression of the parties anyway. Incidentally, court practice shows that the personal impression of the parties is rarely of decisive relevance for the labor courts, especially in conciliation hearings.  

Another labor court in North Rhine-Westphalia found a curious reason for refusal: a video hearing was only possible if no other party to the proceedings was present in the courtroom. This is because there is only one camera available for the presiding judge. In our case, the attorney for the opposing party had rejected the digital hearing - incomprehensibly so, especially in times of a pandemic. The court's reasoning is legally remarkable, because the law does not require the consent of both parties to permit a video hearing. Ultimately, the video trial also failed here due to a lack of equipment.


Better technical equipment urgently needed

Of course, courts can only permit video hearings if the appropriate technical equipment is available. The good news is that the number of requests to hold video hearings has grown steadily in recent years, certainly accelerated by the pandemic. In fact, more video hearings have been taking place as well. Obviously, however, there is still a long way to go before the labor courts are able (and willing) to conduct video hearings across the board. In this regard, the courts and the legal profession should pull together and jointly campaign for an improvement in the courts' video technology.


Digitization is unstoppable

We are optimistic that the relevant ministries and authorities will act and ensure better technical equipment for the courts. This is not only with a view to video hearings. Digitization will continue to advance. An important step is the active and passive obligation to use the special electronic lawyer's mailbox.

To minimize technical problems for all parties involved in the process, uniform and standardized software in the labor courts for conducting video hearings is desirable. This would presumably also be able to change the minds of some doubters in the legal profession who are opposed to video hearings due to possible technical difficulties.

In the interest and at the request of our clients, we will continue to request video hearings - not only during the pandemic. In this respect, we do not give up hope that video hearings will increasingly become part of everyday life in labor courts in the future.

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