Adjudicatory Institutions for Individual Employment Disputes: Formation, Development and Effectiveness

Abstract

This article focuses on first instance discrete adjudicatory institutions for the determination of individual employment disputes, generically known as labour courts, in seven countries: France, Germany, Great Britain, Ireland, Japan, New Zealand and Sweden. First, it traces their formation and subsequent development, applying Thelen’s fourfold typology of displacement, conversion, layering and drift. Sometimes, this typology is appropriate: French and Swedish labour courts have drifted, and in Germany there was displacement after World War 1. Sometimes, however, the typology, is inappropriate. In Ireland, there has been amalgamation and in New Zealand there was displacement and then adaptation. It next seeks to understand which of the seven institutions performs the most effectively, examining several criteria including the legitimacy of the labour court, speed, accessibility, cost, informality, and the propagation of legal norms. It finds that comparisons are limited because adjudicatory institutions need to be judged in their specific national context. Moreover, effectiveness depends on the criterion that is adopted: an institution that scores highly on one criterion does not necessarily do so on another. Despite these limitations, comparisons can be useful to practitioners and academics and Germany’s labour court scores highly on many of the criteria used. Labour Court, Judges, Adjudication, Lay Judges, Employment Disputes, Mediation, Path Dependency, Effectiveness, Legitimacy, Norms