The roles, resources and competencies of worker lay judges: a cross-national study

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This  research project, funded by the Hans Böckler Foundation, will analyse and compare the roles, resources and competencies of worker lay judges who adjudicate on employment rights in labour courts in three EU Member States: Germany, France and Great Britain.

Similarities and also contextual differences will be taken into consideration and the project will provide useful comparison and cross-national learning.

Background

Research questions

Research methods and work plan

Outputs

The team

Institutional Differences


Background

Lay judges' presence in labour courts constitutes a major area of civil society activity with profound consequences for the contending parties. Furthermore, lay judges face dilemmas:

  • how to reconcile their knowledge and understandings of the world of work with legal norms and values 
  • how to reconcile their partisan origins with the requirement to remain non-partisan in the formally neutral judicial process.

The project will explore how worker lay judges resolve these dilemmas in practice.

Research questions

Worker lay judges (or alternatively called lay members in Britain) arrive at their positions by differing routes in each country: 

  • they are nominated by trade unions in Germany
  • they are elected by employees/job seekers in France
  • they nominate themselves and are appointed after a selection process in Great Britain

The main research question is to ask if/ how the route by which worker lay judges come to occupy their role (union nomination, self-nomination, election), and the support they receive associated with these routes, influence their perception of their judicial role and whether these perceptions vary according to individual characteristics (such as gender, occupational background, union activity and experience) independently of these routes.

The subsidiary research questions are:

  1. To ascertain and compare the resources available to worker lay judges in the three countries in terms of time-off, financial compensation, administrative support, and training, enabling 'good practice' standards to be identified.
  2. To explain the role of worker lay judges in labour courts by ascertaining the competencies they bring to the judicial process and to understand if/how they are valued by other stakeholders.

The research will explore a range of theoretical perspectives and will be interdisciplinary, drawing on the sociology of law, socio-legal studies, interaction theory and comparative institutional and cultural analysis.

Research methods and work plan

The project runs from 1 September 2015 until 28 February 2017 and the empirical work, informed by a review of secondary literature, will involve 40 interviews with worker lay judges in each of the three countries and additional interviews with the other main actors in labour courts: employer lay judges, professional judges and lawyers, as well as the bodies responsible for lay judges' nomination and/or appointment.

Data will also be collected on worker lay judges' gender, age, social origins, and trade union and other civil society engagement.

Outputs

There will be a final report to the funder, setting out the main results, as well as workshops in each country near the end of the project for lay judges, trade unionists, government officials, professional judges and employers, as well as academic researchers. After the project ends, there will be publications in academic journals and/or book and practitioner newsletters and/or magazines.

In short, this project will provide an evidential basis for public policy debates on the role of worker lay judges and how best to support them. It is, therefore, of direct interest to practitioners, as well as to academic researchers as it will explore the steps required for retaining and strengthening the role of worker lay judges, an objective recently affirmed by the DGB (the German Confederation of Trade Unions) at its 2014 Congress.

An initial output was a presentation at the International Labour and Employment Relations Association (ILERA) conference Milan, Italy 8-10 September 2016 discussing some emerging findings from the British data.  

Workshops:

The team

The team is multi-disciplinary: academic and practising jurists, industrial relations academics and practitioners, sociologists and a former worker lay judge.

The core members of the project team are:

  • Susan Corby, Professor of Employment Relations, University of Greenwich UK
  • Pete Burgess, Research Fellow, University of Greenwich, UK
  • Hélène Michel, Professor of Political Science, University of Strasbourg, France.
  • Laurent Willemez, Professor of Sociology, University of Versailles, France
  • Armin Höland, Emeritus Professor, Martin Luther University Halle-Wittenberg, Zentrum für Sozialforschung Halle, Germany
  • Elisabeth Krausbeck, Research Fellow, Martin Luther University Halle-Wittenberg, Zentrum für Sozialforschung Halle, Germany

Institutional Differences


Germany
Great Britain
France


Name of 1st instance labour court


Arbeitsgericht


Employment Tribunal


Conseil de prud'hommes


Court organisation-
 1st instance


110 first instance labour courts


39 hearing venues


210 courts in 5 sections: commerce & private services, agriculture, industry, managers, general.


Name of lay judge


Ehrenamtliche Richter (literally an honorary judge)


Lay member/non legal member/ 
wing member


Prud'hommes (literally good men)


Nomination, selection and appointment of employee lay judge at 1st instance


Union nomination and nomination by independent associations of employees. 

Appointment by the Land or by the presidents of the regional labour courts



Self-nomination
Selection by application form sifting/interviews & recommendation for appointment by private sector company to Judicial Appointments Commission


 

Election by employees usually from competing lists organised by trade unions (although employees can nominate themselves).

Appointment by the Ministry of Justice.


Background of professional judge


Career judiciary specialising in employment law


Previous experience as a lawyer  before becoming a judge


Career judiciary sitting in civil and social  courts


Mandatory conciliation undertaken by


Professional judge alone


Separate government agency


2 lay judges

Composition of labour court at 1st  instance

Professional judge + 2 lay judges

Professional judge + 2 lay judges ONLY in certain types of complaint, mainly where discrimination is involved. Otherwise, professional judge alone.

4 lay judges
Professional judge only if a tie

Court fees


 
Fee borne by loser after the hearing based on a sliding scale broadly related to amount claimed. Reduction of fees depending on the method of termination; no fees if case  settled.


£390 (€543)  or £1,200 (€1,671) depending on type of complaint


None


Most frequent types of cases*


Termination cases = 39% 

Wages cases = 24%


Unfair dismissal = 32% 
Discrimination = 42%


Termination cases = 93%


Appeal


Specialised and tripartite throughout: Regional Labour Courts and Federal Labour Court


Specialised – Employment Appeal Tribunal (normally professional judge alone)  and then the civil courts (Court of Appeal and Supreme Court)


Civil courts: Social chamber of the Court of Appeal

Cour de Cassation

Work & Employment Research Unit is part of the Business School, University of Greenwich.