German Labour Courts and the British Industrial Tribunal System. A Socio-Legal Comparison of Degrees of Judicialisation

Abstract

A comparative analysis of substantive labour law and procedural practices of British Industrial Tribunals and West German Labour Courts reveals striking similarities in handling employment conflicts. Although institutional arrangements are significantly different, both labour court models are largely limited to solving disputes after dismissal, and both operate with a complex procedural mixture of negotiation, conciliation, mediation and adjudication. While the first part of the paper presents historical background information, and while the second part discusses doctrinal aspects by comparing British and West German unfair dismissal laws, the paper focuses in a third part on degrees of judicialisation. Thereby, it tries to explain why litigation rates, plaintiffs' success, and rates of settlement are higher in West German Labour Courts compared to the British Industrial Tribunal system. Furthermore, the paper discusses differences in procedures and courtroom personnel; it is found that interaction patterns of judges or chairmen and legal representatives showed a higher degree of formalism in British Industrial Tribunals than in German Labour Court hearings. On the other hand, with respect to pre-judicial procedures Germany still lacks effective filter institutions while Britain has developed a complex system which resists early judicialisation through an interplay of negotiations in grievance procedures and official conciliation efforts. However with respect to judicial procedures, high degrees of formalisation and low success rates for the claimants in Industrial Tribunals seem to have deterrent effects on potential litigants.