Judicial regimes for employment rights disputes: comparing Germany, Great Britain and Japan

• Author: Susan Corby,Ryuichi Yamakawa
• DOI: http://doi.org/10.1111/irj.12307
• Published date: 01 September 2020
• Date: 01 September 2020

Judicial regimes for employment rights

disputes: comparing Germany, Great

Britain and Japan

Susan Corby*and Ryuichi Yamakawa

ABSTRACT

This article compares the judicial regimes for resolving individual employment rights

disputes in Germany, Great Britain and Japan. First, we consider the form of institu-

tional change; second, we examine the lay judge’s role; and third, we assess the effec-

tiveness of the three judicial regimes. We find that Japan made the least institutional

change, layering a new procedure on top of an existing one. Paradoxically, however,

its lay judges have a more extensive role than their counterparts in Germany and Brit-

ain, which established new institutions. As to effectiveness, there are several criteria.

British labour courts are currently the least informal and speedy, but the cheapest.

In both Britain and Germany, legal norms are publicised as adjudicatory hearings

are open to the public and judgments are available for public scrutiny, unlike in

Japan.

1 INTRODUCTION

The decrease in trade union membership and the increase in individual employment

rights in much of the developed world in the last quarter of a century have led to

juridification, that is, increased legal intervention in the employment relationship

and consequently a key role for the courts in resolving employment disputes. In re-

sponse, many governments have established discrete judicial mechanisms to resolve

employment rights disputes (Ebisui et al., 2016). With individual rights disputes likely

to increase as unemployment and employment insecurity spread in the wake of the

COVID‐19 pandemic, such judicial mechanisms are likely to become yet more

significant.

Accordingly, this article compares judicial regimes in Germany, Great Britain

1

and

Japan, but this choice of countries is not arbitrary. When Japan’s prime minister

appointed a Study Group to recommend a judicial system for resolving employment

rights disputes, it considered judicial regimes abroad, especially the labour court

❒Susan Corby, The Business School, University of Greenwich, London, UK; Graduate School for Law

and Politics, University of Tokyo, Tokyo, Japan and Ryuichi Yamakawa, The Business School,

University of Greenwich, London, UK; Graduate School for Law and Politics, University of Tokyo,

Tokyo, Japan. Correspondence should be addressed to Professor Susan Corby, University of Greenwich,

London, UK; email: s.r.corby@gre.ac.uk

1

Great Britain covers England, Scotland and Wales but excludes Northern Ireland. Labour courts in

Northern Ireland differ in several respects and merit separate comparison, but they are excluded here be-

cause of our limited resources and the fact that the working age population is small (under one million

employees).

Industrial Relations Journal 51:5, 374–390

ISSN 0019-8692

© 2020 Brian Towers (BRITOW) and John Wiley & Sons Ltd

systems in Germany and Great Britain. Additionally, the Study Group invited Ger-

man and British employment judges to address a public symposium on their systems.

We direct our comparison to three research questions. The first research question

concerns institutional change: in what circumstances were regimes in these three

countries established specifically to handle employment rights disputes and what form

did the institutional change take?

Our second research question concerns lay judges. Many countries, as noted above,

establish discrete institutions for resolving employment rights disputes. Many of these

have a ‘mixed’composition: a legally trained professional judge sits with, and is

outnumbered by, two lay judges drawn equally from those with experience as em-

ployees and those with experience as employers or managers, so that any adjudication

takes cognizance of workplace norms. Yet the role of these lay judges varies from

country to country. Accordingly, we ask the following question: in which of our three

comparison countries is the lay judge’s role the most extensive?

Our third research question concerns effectiveness: in which of these three countries

is the judicial regime the most effective? This assessment is based on a range of criteria

specified below.

Our plan is as follows: we begin by briefly considering previous research and de-

scribing the industrial relations context in which our three regimes operate. Then, af-

ter outlining our methodology, we seek to answer our research questions: institutional

change, the lay judge role and regime effectiveness. We conclude by discussing our

findings and offering some observations about future research. In so doing, we some-

times use the generic term ‘labour court’. Alternatively, we sometimes use the term

‘employment tribunal’for Britain, ‘labour court’or Arbeitsgericht for Germany and

‘labour tribunal procedure’or rodo shinpan seido for Japan.

2 PREVIOUS RESEARCH

There have been country‐specific studies of the judicial regimes for resolving individ-

ual employment rights disputes in our three countries. For Japan, Sugeno (2004) ex-

plained how Japan’s labour tribunal procedure was born; Araki (2013) reviewed its

operation; and Yamakawa (2014, 2016) considered Japan’s labour tribunal system to-

gether with other governmental and non‐governmental structures for resolving both

individual and collective labour disputes, as did Honami (2014).

For Great Britain, Dickens et al. (1985) carried out seminal research over 30 years

ago, but recent studies include those by Meeran (2006), Dickens (2012), Corby and

Latreille (2012) and Corby (2015), who have traced the development of employment

tribunals and commented on their effectiveness. There have also been country‐specific

studies of Germany’s labour courts, both some time ago, for instance Brandstätter

et al. (1984) and recently by Höland et al. (2007) and Höland and Buchwald (2018),

particularly looking at lay judges in German labour courts.

Comparisons between countries, however, are rarer. Nevertheless, British and Ger-

man labour courts have been compared by Blankenburg and Rogowski (1986) and

Schneider (2005). The former found that British employment tribunals were more for-

mal than German labour courts. The latter concluded that although the two countries

had different legal systems, they had common problems, including criticism that they

were legalistic and that they provided monetary compensation, not reinstatement,

where they found a dismissal was unfair. More recent research, funded by the Hans

Böckler Foundation, considered the role of lay judges in French, British and German

375Judicial regimes for employment rights disputes

© 2020 Brian Towers (BRITOW) and John Wiley & Sons Ltd