10.6092/issn.1561-8048/13375
Access to justice is a fundamental right of workers stipulated in a set of international, EU and national instruments of law. The lockdowns induced by the Covid-19 pandemic have had double negative impact on the effective enforcement of this right. While pandemic-related lockdowns resulted in an increasing number of labour disputes and dismissals as well as generated novel and difficult questions of labour law, accessibility of legal remedies in Hungary became limited through the (temporary) restrictions concerning the functioning of the judiciary. In parallel, emergency-related amendments of labour law have, on the one hand, supported the survival of undertakings, on the other hand, restricted individual and collective rights of workers. This paper is designed to give a comprehensive view on the endeavours of Hungarian labour courts to guarantee the possibly uninterrupted and safe maintenance of litigation in labour cases.
application/pdf
1561-8048
13375
1
en
Szilvia Halmos
https://creativecommons.org/licenses/by/4.0
Italian Labour Law e-Journal
Digitalization of justice
Access to Justice in Labour Cases in Hungary during the Covid-19 Pandemic
Text.Serial.Journal
https://illej.unibo.it/
14
Miscellaneous
2021-07-29
2021-07-28
2021-07-29
2021-07-29
147-167
ILLeJ
Szilvia Halmos
2021/07/29
10.6092/issn.1561-8048/13375
147
Budapest-Metropolitan General Court
1561-8048
1
Digitalization of justice
en
167
Access to Justice in Labour Cases in Hungary during the Covid-19 Pandemic
https://illej.unibo.it/article/download/13375/12958
14
Access to Justice in Labour Cases in Hungary during the Covid-19                     Italian Labour Law e-Journal
Pandemic                                                                                    Issue 1, Vol. 14 (2021)
Szilvia Halmos                                                                                    ISSN 1561-8048
halmos.szilvia@gmail.com                                           https://doi.org/10.6092/issn.1561-8048/13375




     Access to Justice in Labour Cases in Hungary during
                    the Covid-19 Pandemic
                                               Szilvia Halmos



 1. Why precisely the labour courts? The key role of judicial way in labour law dispute
 resolution in Hungary. 2. Increased necessity of effective enforcement of labour law during
 the Covid-19 pandemic. 2.1. “Emergency labour law” – amendments of substantive labour
 law and measures supporting the labour market adopted during the pandemic. 2.2. New
 aspects and types of employment conflicts. 3. Limitations on the functioning of labour
 courts. 4. Taking advantage of the existing and novel ways of litigation. 4.1. The “Digital
 Court Project” – an advantageous background for the crisis management. 4.2. Practical
 challenges and experiences of labour litigation during the pandemic. 5. Conclusions.



                                                       Abstract

     Access to justice is a fundamental right of workers stipulated in a set of international, EU and
     national instruments of law. The lockdowns induced by the Covid-19 pandemic have had double
     negative impact on the effective enforcement of this right. While pandemic-related lockdowns
     resulted in an increasing number of labour disputes and dismissals as well as generated novel
     and difficult questions of labour law, accessibility of legal remedies in Hungary became limited
     through the (temporary) restrictions concerning the functioning of the judiciary. In parallel,
     emergency-related amendments of labour law have, on the one hand, supported the survival of
     undertakings, on the other hand, restricted individual and collective rights of workers. This paper
     is designed to give a comprehensive view on the endeavours of Hungarian labour courts to
     guarantee the possibly uninterrupted and safe maintenance of litigation in labour cases.



     Keywords: Access to justice; Emergency procedure rules; Covid-19; Labour courts;
     Digitalization of justice.




 
   Judge at the Budapest-Metropolitan General Court, Department of Labour Law; judge member of the
 European Law Advisors Network (ELAN); visiting lecturer at the Labour Law Department, Faculty of Law,
 Pázmány Péter Catholic University (Budapest, Hungary). The author wishes to thank Prof. Attila Kun
 (Professor of Labour Law, Leader of the Department of Labour and Social Law, Károli Gáspár University of
 the Reformed Church, Budapest, Hungary), Gabriella Ilyés-Farkas (Leader of Department of Labour Law,
 Budapest-Metropolitan General Court) and Tiborné Lőrincz (Leader of the Registry of the Department of
 Labour Law, Budapest-Metropolitan General Court) for the exploration of the statistical figures referred to in
 this paper. The manuscript was closed 31 May 2021. This article has been submitted to a double-blind peer
 review process.
    Szilvia Halmos                                                                      Italian Labour Law e-Journal
                                                                                               Issue 1, Vol. 14 (2021)
                                                                                               Section: Miscellaneous



1. Why precisely the labour courts? The key role of judicial way in labour law dispute
resolution in Hungary.

    In Hungary, like in most countries, a number of ways of labour dispute resolution is
known and used. After the fall of the communist era, from 1992, the newly introduced
Labour Code guaranteed the right to the parties of individual and collective labour
relationships to assert their rights before the reanimated, specialised labour courts.1 The
currently effective Labour Code (hereinafter: LC) still guarantees the judicial remedy for
claims under employment law.2 Besides, the LC envisages specific forms of alternative
dispute resolution, such as conciliation3 and arbitration in collective disputes.4 Mediation is
also a widely known and legally recognised form of resolution of both individual and
collective disputes.5 Several private entities (e.g. law offices and attorneys) provide mediation
and arbitration services. The Labour Advisory and Dispute Settlement Service (LADSS),
operated by the Government and social partners from EU funds, provides mediation,
arbitration and conciliation services free of charge with the cooperation of the nationwide
network leading employment law academics and experts.6 Likewise, even courts provide “in
house” mediation services for parties, carried out by specially trained court mediators (judges
and judicial secretaries). In labour cases, using of court mediation service takes place on a
voluntary basis.7
    Nevertheless, in contrast to a number of other countries, alternative forms of settlement
of labour disputes unfortunately could not become particularly significant forms of effective
enforcement of labour law. Exact statistical data are not available, but telling figures are that
in the period of 2016 to 2019, the LADSS, as the most important and best known service
provider in the field of collective interest disputes, arranged in total 19 mediation, conciliation
and arbitration cases.8 The number of incoming litigious labour cases at the courts amounted
to 13 477 in 2016, 12 667 in 2017, 6170 in 2018, 4615 in 2019 and 1129 in 2020 respectively.9
The detailed analysis of the reasons for the regrettable unpopularity of alternative dispute
resolution ways as well as the reduction of judicial cases would go far beyond the scope of
this study. All that is important to note that the judicial way, in spite of the radical decline of
the number of incoming cases during the recent years, is indisputably the predominant

1 Act XXII of 1992 on the Labour Code, sec. 199.
2 LC, sec. 285(1).
3 LC, sec. 291-292.
4 LC, sec. 293.
5 Act LV of 2002 on Mediation (hereinafter: MedA), sec. 23-38.
6 Website of the LADSS: https://www.munkaugyivitarendezes.hu/, accessed 21 May 2021.
7 MedA, sec. 38/A, 38/B. The exact number of labour disputes arranged by court mediators is not published.
8 See Kun A., Tájékoztató a Munkaügyi Tanácsadó és Vitarendező Szolgálat (MTVSZ) első (2016–2019) és második

(2019–2021) működési periódusáról [“Information sheet on the first (2016-2019) and the second (2019-2012) periods of
functioning of the Labour Advisory and Dispute Settlement Service”], in Munkajog, 3, 2019, 65-69. The author notes that
these figures are still impressive in contrast to the predecessor organisation of the LADSS, the Employment
Arbitration and Mediation Service, which acted in total in 90 cases during 11 years of operation. No data have
been published on the current period of functioning (2019-2021) yet.
9 See: https://birosag.hu/ugyforgalmi-adatok; accessed in May 2021. It should be noted that from 1 January

2018, due to specific organisational changes, labour litigations concerning public service were detached from
the labour division and attached to the administrative judiciary, which resulted in a reduction of the number of
cases. Cases before labour courts include predominantly individual labour disputes.


https://doi.org/10.6092/issn.1561-8048/13375                                                                         148
     Szilvia Halmos                                                                  Italian Labour Law e-Journal
                                                                                            Issue 1, Vol. 14 (2021)
                                                                                            Section: Miscellaneous



method of labour dispute resolution in Hungary. Accordingly, labour courts10 still play an
essential role in effective enforcement of labour law, and in particular, in protecting
fundamental workers’ rights.
   Consequently, guaranteeing a genuine access to labour judiciary is a key factor in
protection of workers’ rights as well as a fair balance between the interests of parties of
individual employment relationships and collective partners. It is especially true in times
when current economic and social contextual factors put particular pressure on employees
and employers that generates more conflicts than usual.


2. Increased necessity of effective enforcement of labour law during the Covid-19
pandemic.

    Before the description of the pandemic-related amendments of labour law, it is advisable
to have a view to the relevant changes of constitutional framework of legislation during the
epidemic. The first “state of emergency” was declared by the Government11 with effect from
11 March 2020 on the grounds of the Article 53 of the Fundamental Law. In the state of
emergency, the Government is empowered, under an implementing act, to suspend the
application of or derogate from certain laws, and introduce extraordinary measures.12 The
first state of emergency ended on 16 June 2020, covering the first wave of the pandemic in
Hungary. From 17 June 2020 the “state of epidemic preparedness” was introduced by the
Government.13 In this period, the Government was not authorised to exercise the
aforementioned extraordinary legislative powers, however, some fundamental epidemic-
based restrictions remained in force. Along with the worsening of the epidemiological data
during the second wave of the epidemic (started in Hungary from late August 2020), the




10 In Hungary, there are no specialised labour courts in an organisational sense. Under the term “labour court”,
the following organisational units of the national judiciary are understood for the purposes of this study. First
instance labour disputes are heard by the general courts located in each county seat (19) and in the capital. It is
variable from county to county whether separate labour law departments deal with labour cases within the
general courts or these cases are arranged by other departments acting in miscellaneous fields of law. Appeals
against the first instance decisions can be lodged with regional appellate courts (5), which all have separate
labour law departments. A petition for judicial review against the final decision of a regional appellate court can
be submitted to the Kúria of Hungary, which is the single supreme judicial forum in the country. The Kúria
has currently one specialised panel for labour cases.
11 40/2020. (III.11.) Government Decree on the declaration of the state of emergency, sec 1. The Parliament

confirmed the Government decrees adopted from the time of the beginning of the state of emergency through
the Act XII of 2020 on Measures for the Control of Coronavirus [sec 3(3)], adopted with qualified majority on
30 March 2020. In addition, this latter act authorised the Government to introduce specific extraordinary
measures by means of a decree in order to guarantee that the life, health, personal safety and property, and the
rights of the citizens are protected, and to guarantee the stability of the national economy (sec 2).
12 Article 53 of the Fundamental Law.
13 283/2020. (VI.17.) Government Decree on the introduction of the state of epidemic preparedness

(hereinafter: 283/2020. Gov. Decree), sec 1.

https://doi.org/10.6092/issn.1561-8048/13375                                                                      149
     Szilvia Halmos                                                                      Italian Labour Law e-Journal
                                                                                                Issue 1, Vol. 14 (2021)
                                                                                                Section: Miscellaneous



second state of emergency was declared with effect from 4 November 2020,14 and it is still
going on (prolonged by subsequent legislative acts).15


2.1. “Emergency labour law” – amendments of substantive labour law and measures
supporting the labour market adopted during the pandemic.

    Concerning substantive labour law, the Government, exercising its extraordinary
legislative power during the first state of emergency, adopted some important amendments,
which remained in force until 1 July 2020. The “emergency” labour law encompassed the
following special provisions:
     − The employer could deviate from the communicated work schedule (and thus avoid
         ordering overtime) at any time.16
     − The employer could unilaterally order teleworking or work in home office for the
         employee.17
     − The employer could take the necessary and justified measures to control the health
         of the employees.18
     − Collective agreement provisions derogating from the provisions above should not
         apply.19
     − The employer and the employee could agree on any derogation from the provisions
         of the LC.20
     − The employer could unilaterally introduce a reference period for working time
         banking for a period of 24 months at the highest. The cessation of the state of
         emergency does not affect the reference periods introduced according to this




14 487/2020. (XI.3.) Government Decree on the introduction of the state of emergency, sec 1.
15 According to the version of relevant legislation currently in force, the state of emergency ends on the 15 th
day following the first sitting of the autumn session of the Parliament. (Act I of 2021 on Measures for the
Control of Coronavirus, sec. 5/A).
16 47/2020. (III. 18.) Government Decree on immediate measures to mitigate the effects of the coronavirus

pandemic on the national economy [hereinafter: 47/2020. Gov. decree), sec. 6(2)(a)]. The 47/2020. Gov. decree
was taking effect on 19 March 2020. According to the relevant provisions of the LC, the employer is obliged
to communicate the work schedule for at least one week, at least 168 hours in advance of the start of the
scheduled daily working time. The communicated schedule can be altered at least 96 hours before the start of
daily work upon unforeseen circumstances in business or financial affairs of the employer (LC, sec. 96(4)(5).
17 47/2020. Gov. decree, sec 6(2)(b). According to the LC, teleworking can only take place based on the mutual

agreement of the parties included in the employment contract. “Home office” is not at all regulated as such
under Hungarian labour law, hence, there are several uncertainties concerning its practical application. See in
detail Molnár B., Gondolatok a home office-ról általában és vírus idején, in Magyar Munkajog E-folyóirat, 1, 2020, 38-46,
http://hllj.hu › letolt › 03_MolnarB_M_hllj_2020_1, accessed 22 May 2021.
18 47/2020. Gov. decree, sec 6(2)(c).
19 47/2020. Gov. decree, sec 6(3).
20 47/2020. Gov. decree, sec 6(4).



https://doi.org/10.6092/issn.1561-8048/13375                                                                          150
     Szilvia Halmos                                                                          Italian Labour Law e-Journal
                                                                                                    Issue 1, Vol. 14 (2021)
                                                                                                    Section: Miscellaneous



        provision.21 Provisions of collective agreements derogating from these rules should
        also not apply.22
    The provisions above were obviously targeted to make a more flexible legal framework
for employers to shape working conditions and organise work during the state of emergency.
Employers enjoyed an excessively wide margin of discretion in terms of defining work
schedule, which supported the survival of the business entities, the prevention of
downsizings in lockdown periods, and enabled the employers to meet the challenges
triggered by sudden illnesses or quarantines ordered for workers. However, it is also apparent
that the employment practices developed on the basis of the emergency regulation could
violate fundamental workers’ rights including the right to have regular and sufficient rest
periods.23
    The protective function of labour law was also diminished by application of the concept
of unrestricted freedom of contract, through the aforementioned extension of the margin
for bargaining of the employer and the employee. Disregarding the weaker position of the
employee’s side, agreements could lead to severely detrimental or precarious working
conditions. Apparently, the effectiveness of specific minimum standards of workers’
protection guaranteed by relevant international agreements, EU law as well as the
Fundamental law of Hungary could also be challenged by the emergency provisions.
Nevertheless, from 11 April, the 104/2020. Gov. Decree declared that specific provisions of
the LC, including the rules on daily and weekly rest, maximum and minimum daily and weekly
working time, should not be deviated from.24 This provision resumed the minimum
protection of workers’ rights in some core aspects of employment, however, with a very
limited scope (e.g. the right to paid leave could be still waived off).25
    As Attila Kun asserts: “[…] the main intention and effect of the above-mentioned
measures were to push the burden of crisis-management to the parties of the employment
contract (and more specifically, indirectly to the employee). As practice showed, this
approach in itself could not suffice in the long run; more active (financial) forms of state
support were needed.”26 As regards this latter need, a set of economic incentives have been
indeed adopted enabling the adaptation of business entities to the difficulties caused by
lockdowns and the protection of jobs. These measures included (but were not limited to):


21 104/2020. (IV.10.) Government decree, sec. 1(1)(2). This decree was effective from 11 April 2020. According
to the LC, the employer is entitled to introduce unilaterally a reference period of working time banking for a
period of 4 months/16 weeks. The law sets out further criteria for the introduction of longer reference periods
(collective agreement, specific conditions of the employer’s activity etc.) [LC, sec. 94].
22 104/2020. (IV.10.) Government decree, sec. 1(4).
23 The measures of “emergency” labour law is commented by Horváth I., Petrovics Z., COVID ’19 – Hungary.

Measures concerning employment, collective labour law and social security, in Noticias CIELO, Número especial Noticias
CIELO sobre COVID-19 y relaciones de trabajo, 2020, www.cielolaboral.com, accessed 14 May 2021 and
Horváth I., Petrovics Z., COVID ’19 – Hungary (Part 2). Measures concerning employment, collective labour law and social
security, in Noticias CIELO, 4, 2020, www.cielolaboral.com, accessed 14 May 2021.
24 104/2020. Gov. decree, sec 1(1).
25 The erosion of the protective function of labour law in analysed by Kun A.,HUNGARY ⎯ The impact of the

labour law measures taken by the authorities: reflections one year after the official recognition of Covid-19 as a pandemic, in
Noticias CIELO, Número especial Noticias CIELO sobre las consecuencias sociales del COVID-19, 3, 2021,
www.cielolaboral.com, accessed 15 May 2021.
26 Kun A., ibid, 3.



https://doi.org/10.6092/issn.1561-8048/13375                                                                               151
     Szilvia Halmos                                                               Italian Labour Law e-Journal
                                                                                         Issue 1, Vol. 14 (2021)
                                                                                         Section: Miscellaneous




     − introduction of a “Kurzarbeit”-scheme (i.e. granting a wage support for reduced
          working time agreed upon by the parties, combined with the ban on termination of
          the employment relationship for the duration of the support);27
     − tax reductions: employers in a range of branches especially affected by the lockdowns
          were exempted from paying a number of taxes and contributions;28
     − a ban on termination of rental contracts in vulnerable branches;29
     − credit repayment moratorium for specific businesses and private persons for credit
          agreements existed on 18 March 2020.30
    In the state of epidemic preparedness, which covered a milder phase of the pandemic,
fewer further amendments of labour law were introduced, targeting some specific sectors as
follows:
     − compulsory measuring of body temperature was introduced upon entering buildings
          of public education for pupils and workers as well;31
     − employers in healthcare services had considerably broader options for secondment
          of healthcare workers.32
    Reference periods of working time banking up to 24 months, which were introduced on
the basis of the authorisation included in the “emergency labour law” effective in the first
period, were not affected by the cessation of the state of emergency. In addition, on the
grounds of the individual license of an appointed Government Office, further “emergency
reference periods” (up to 24 months) can be introduced by employers under the condition
that it is related to a job creation investment, and it is in interest of the national economy.33
    The aforementioned incentives were partly maintained, partly further refined.34
    The second state of emergency in Hungary did not affect substantive labour law to that
extent that was experienced during the first wave. Only a few relevant provisions have been
adopted that concerned employment law:

27 105/2020 (IV.10.) Government Decree on support for reduced working time in the event of an emergency
under the Economic Protection Action Plan. The wage support could be applied for from 16 April 2020 to 31
August 2020.
28 47/2020. Gov. decree, sec. 4. This provision, which covered employers in the sectors of tourism, hospitality,

entertainment, gambling, film industry, performing arts, event promotion and sports service, was amended by
the 61/2020 (III.23.) Government Decree, which extended the scope of beneficiary branches. The benefits
were available from the months March to December 2020. Transitional provisions guaranteed the availability
of specific benefits until 31 December 2020 [Act LVIII on the Transitional Provisions as Regards the Cessation
of State of Emergency and on the Epidemic Preparedness; hereinafter: Transitional Act].
29 47/2020. Gov. decree, sec. 3. The ban was in effect until 30 June [Transitional Act, sec. 31]
30 47/2020. Gov. decree, sec. 1. The conditions of the moratorium was refined and the availability was extended

for more times.
31 431/2020. (IX.18.) Government Decree on protective measures of the epidemic preparedness, sec. 4 to 5

(effective from 19 September 2020 to 10 November 2020); 484/2020). (XI.10.) Government Decree on the
second period of protective measures during the state of emergency, sec. 17 to 18 (effective from 11 November
2020).
32 The section 14 of the 531/2013. (XII.30.) Government Decree on crisis health care was amended by the

sections from 64 to 71 of the 284/2020 (VI.17.) Government Decree on the transitional decree provisions
related to the cessation of the state of emergency, and became temporarily applicable through the declaration
of the status of health care crisis by the section 1 of the 283/2020. Gov. Decree. The amendments took effect
on 18 June 2020.
33 Transitional Act, sec 56(4).
34 See the previous footnotes.



https://doi.org/10.6092/issn.1561-8048/13375                                                                   152
     Szilvia Halmos                                                               Italian Labour Law e-Journal
                                                                                         Issue 1, Vol. 14 (2021)
                                                                                         Section: Miscellaneous




    − substitution of duty of control of working environment of the employer in the event
        of teleworking by a duty of communication of information on the rules of
        occupational health and safety to the teleworker; 35
    − tax-free reimbursement of costs related to teleworking (up to the 10 % of the
        minimum wage);36
    − an individual agreement of the employer and the teleworker may deviate from the
        statutory definition on teleworking and some special rules on teleworking.37
   Economic recovery packages introduced in the second state of emergency were primarily
targeted to specific vulnerable sectors (compared to the Kurzarbeit-scheme of the first period
with general applicability):
    − wage subsidies and tax reductions were granted for employers in sectors particularly
        affected by the pandemic (tourism, hospitality, leisure, sport and cultural services
        etc.);38
    − specific recovery measures were maintained (e.g. tax reductions and exemptions,
        credit repayment moratorium).


2.2. New aspects and types of employment conflicts.

   As regards the overall effect of the pandemic on the conflicts between the parties of
employment relationship, the following conclusions can be drawn. On the one hand, the
viability of businesses have been supported by multifaceted protective and recovery
packages, which apparently decreased the possible conflict situations between the parties by
enabling the enterprises to avoid implementing layoffs and to pay the wages in periods with
low or no income. On the other hand, the pandemic has given rise to new types of workplace
conflicts as well as novel and difficult application problems of labour law. The “emergency
labour law” effective during the first state of emergency, with the rules ensuring extreme
flexibility in employment, raised concerns about incompliance with the standards set out in
the national Fundamental Law39 as well as by the EU and international framework of labour
law. As it was referred above, the role of social dialogue in crisis management was also in an

35 Duty of control of the employer of the working environment as regards of occupational health and safety is
provided by the section 86/A of the Act XCIII of 1993 on Occupational Safety. The application of this
provision was suspended by the section 1 to 2 of the 487/2020. (XI.11.) Government Decree on the application
of rules on teleworking during the state of emergency (hereinafter: 487/2020. Gov. decree).
36 487/2020. Gov. decree, sec. 2.
37 Special rules on teleworking are set out at sections 196 to 197 of the LC. According to the 487/2020. Gov.

decree, the parties may deviate from section 196, which concerns, inter alia, the definition of teleworking and
the compulsory elements of agreement on teleworking (487/2020. Gov. decree, sec. 3).
38 485/2020. (XI.10.) Government Decree on specific measures concerning the protection of economy;

effective from 11 November 2020. According to the latest amendments, the subsidies were available until and
including May 2021.
39 In the meanwhile, a number of motions have been lodged with the Constitutional Court related to specific

amendments of labour law during the pandemic. In the orders No. 3326/2020. (VIII.5.) AB and 3159/2020.,
the Constitutional Court found a motion attacking the section 6(4) of the 47/2020. Gov. Decree and another
motion concerning the rules on secondment of healthcare workers inadmissible; the decision on another
motion (pursuing the unconstitutionality of the “emergency reference period”) is pending.

https://doi.org/10.6092/issn.1561-8048/13375                                                                   153
     Szilvia Halmos                                                                       Italian Labour Law e-Journal
                                                                                                 Issue 1, Vol. 14 (2021)
                                                                                                 Section: Miscellaneous



unparalleled way restricted.40 Employment during the pandemic has produced practical
situations and questions, which are considerably difficult to address based on the rules of
labour law, which are premised on the “normal” course of life and business. The most
frequently occurring and expected hard questions include the following ones.
     − What rules apply for “home office” unilaterally ordered by the employer as far as this
        legal construct is not nominated by the LC (in particular: responsibility for work
        accidents, covering of costs, controlling of working and rest time, responsibility for
        data protection and IT security etc.)?
     − How should the term “vis maior” interpreted during a pandemic situation for the
        purposes of the provision that exempts the employer of duty to pay wages for down-
        times in periods of vis maior?41 The same question arises concerning the termination
        of temporary employment, which is also only justified under specific conditions,
        among which the event of “vis maior” is referred as well.42
     − In the framework of what constructs of labour law allowing paid or unpaid leave can
        parents stay at home with their children in times of extraordinary school vacations
        and digital schooling?
     − How is the employer allowed to check the health condition or the status of
        vaccination of the staff? What consequences of labour law can be applied if the
        employee refuses to cooperate?43
     − Under what conditions is the employee entitled or obliged to refuse to carry out an
        instruction of the employer with reference to presumed health risks related to the
        Covid19?44
     − What does the employer’s duty to provide work include in downtime periods (i.e. is
        the employer obliged to provide work temporarily under other conditions than
        agreed upon in the employment contract)?
     − Under what conditions should an employer’s policy be considered as discriminatory
        provided that it has significantly detrimental impact on specific vulnerable groups of
        workers, such as e.g. workers with bad health conditions or having family
        responsibilities, commuters etc. (e.g. general ordering of home office or general ban
        on home office, introduction of harsh or hectic work schedules etc.)?
    Considering the fact that labour law has never had to address special situations arising
from a world pandemic, the otherwise extensive and rich existing case law (concerning e.g.

40 As Sára Hungler asserts, contemplating the history of management of previous (economic) crises, overriding
the agreement of social partners by the legislation appears to be an unparalleled measure. See Balázs I., Hoffman
I., Hungler S., „Veled Uram, de nélküled” – állam, önkormányzatok, munkáltatók a koronavírus idején [”In Your Name,
My Lord, yet Without You” – State, Municipalities and Employers During the Pandemic], in Magyar Tudomány, 5, 2021.,
https://mersz.hu/hivatkozas/matud202105_f57945_p1#matud202105_f57945_p1, accessed 21 May 2021.
41 See LC, sec. 146(1).
42 See LC, sec. 68(8)(c).
43 About the hot topics concerning pandemic-related questions of labour law: see Kun A., nt. (25), 6; see also

Csorba A., Milyen típusú munkaügyi perek várhatók a koronavírus hatására? [“What types of labour law disputes are expected
related to coronavirus pandemic?], in Magyar Munkajog E-folyóirat”, 1, 2020, 29-37.
44 See: LC, sec. 54 “(1) Employees shall refuse to carry out an instruction if it would result in direct and grave

risk to the health of others or to the environment. (2) Employees may refuse to carry out an instruction if it
violates the provisions of employment regulations, or it would result in direct and grave risk to the life, physical
integrity or health of the employee.”

https://doi.org/10.6092/issn.1561-8048/13375                                                                           154
     Szilvia Halmos                                                       Italian Labour Law e-Journal
                                                                                 Issue 1, Vol. 14 (2021)
                                                                                 Section: Miscellaneous



the concept of “vis maior” or the duties of the employer in downtimes) can be indicative
with restrictions, subject to a careful assessment of all the individual circumstances of the
cases.
   As a consequence, the pandemic has increased the number of potential conflicts arising
from the special employment situations. As it was also referred above, Hungarian labour
courts have an eminent role in settling labour law disputes. Accordingly, guaranteeing the
possibly uninterrupted functioning and actual accessibility of labour courts has been
extremely important during the Covid19 pandemic. However, like in terms of all private and
public services, the operation of justice system had to be subject to specific, pandemic-related
restrictions in interest of health and safety of the clients, the judges and the court staff. In
the next section it is outlined, which restrictions applied from the beginning of the pandemic
concerning the operation of courts, and how (labour) courts have taken advantage of the
existing opportunities to continue the arrangement of cases.


3. Limitations on the functioning of labour courts.

   Amongst the earliest measures of the Government related to the first state of emergency,
acting on the proposal of the Kúria, the President of the National Office for the Judiciary
(NOJ)45 and the Chief Prosecutor, an extraordinary judicial vacation was introduced from 15
March 2020.46 The relevant provision did not specify the duration and the detailed rules on
the extraordinary judicial vacation (in particular: how it affects the procedural time limits),
and the applicability of the rules on “normal” judicial vacations laid down in the Act CXXX
on the Civil Procedure (hereinafter: CCP Act) was also not regulated.47 As the relevant
Government Decree expired after 15 day upon the entry into force, the extraordinary judicial
vacation was not prolonged. Instead, a new Government Decree was issued on the detailed,
special procedural rules applicable during the state of emergency (hereinafter: Emergency
Procedure Gov. Decree).48 The Emergency Procedure Gov. Decree provided a clear
regulation on the calculation of procedural time limits which would have expired during or
within 15 days upon the cessation of the previous extraordinary judicial vacation.49 Further,
this decree determined the special procedural rules on the operation of courts during the
state of emergency, including the following ones.
    − As general rule, the decree declared that the state of emergency did not suspend the
         time limits, unless otherwise provided by the decree.50 In this provision, it was
         manifested that, according to the legislature’s intention, proceedings had to be
         resumed and continued, if possible.



45 The NOJ is the central organ of court administration in Hungary.
46 45/2020. (III.14.) Government Decree.
47 CCP Act, sec. 148.
48 74/2020. (III.31.) Government Decree on specific rules of procedure applicable during the state of

emergency.
49 Emergency Procedure Gov. Decree, sec. 97.
50 Emergency Procedure Gov. Decree, sec. 21(1).



https://doi.org/10.6092/issn.1561-8048/13375                                                           155
     Szilvia Halmos                                                            Italian Labour Law e-Journal
                                                                                      Issue 1, Vol. 14 (2021)
                                                                                      Section: Miscellaneous




     − No “live” court hearing could be held.51 As a substitution of hearings, the decree
         provided two opportunities for continuing the proceedings.
              − It extended the scope of application of written procedural steps. While,
                  according to the CCP Act, it is, as a main rule, excluded to render a judgement
                  or to approve a settlement of the parties outside a hearing, the emergency
                  rules explicitly permitted these, if the case was mature for completion.52
              − It extended the scope of application of online means (as outlined in detail
                  below).
     − The first instance court acted as a single judge even in cases where the CCP Act
         provides that the court proceeds in a chamber.53 This provision concerns labour
         disputes, where, according to the normal procedural rules, the first instance court
         consists of a professional judge and two lay judges.54
     − The emergency rules deferred the mandatory application of specific procedural forms
         (e.g. for the statement of claim or the counter-claim submitted by a party without a
         counsel). When appropriate, the court had to provide the parties without counsel
         sufficient and comprehensive guidelines for remedying the deficiencies.55
     − The proceedings could be stayed at the mutual request of the parties unlimited times
         (each for 4 months). In contrast, the CCP Act allows stays of proceedings out of this
         reason only for no more than three times.56
    The emergency rules provided a detailed guideline for judges as regards the combination
of written and online procedural acts. However, before the description of the special rules
that were applicable during the first state of emergency, it is advisable to have an overview
on the structure of first instance civil procedure. According to the CCP Act, first instance
procedure consists of three stages. (1) In the stage of “bringing action”, the statement of the
claim, lodged with the court, is scrutinised, whether it contains the mandatory elements
(remedying the deficiencies is also possible). Once the claim is admissible, the court delivers
it to the defendant, calling him upon to present the defence. The stage of bringing an action
takes place normally in writing, however, the judge may order to have the party without a
counsel heard in person where it considers this to be more appropriate for remedying the
deficiencies found in the statement of claim.57 (2) In the stage of “case initiation”, the parties
refine and finalise their statements concerning the relevant facts, the legal basis, the legal
arguments and the motions for the presentment of evidence (together: case initiation
statements), i.e. the frames of the proceedings. After closing this stage, the case initiation
statements can be altered only under very exceptional circumstances. Case initiation can take
place, at the discretion of the court, through exchanging case initiation documents, or in the
framework of a case initiation hearing, or in the combination of the two latter. (3) In the
stage of “hearing as to the merits”, the court takes the evidence in the framework defined

51 Emergency Procedure Gov. Decree, sec. 21(2) to (4).
52 Emergency Procedure Gov. Decree, sec. 28.
53 Emergency Procedure Gov. Decree, sec. 23.
54 CCP Act, sec. 510.
55 Emergency Procedure Gov. Decree, sec. 24, CCP Act, sec. 246 (as effective until 31 December 2020).
56 Emergency Procedure Gov. Decree, sec. 21(5), CCP Act, sec. 246.
57 CCP Act, sec. 248(1).



https://doi.org/10.6092/issn.1561-8048/13375                                                                156
     Szilvia Halmos                                                    Italian Labour Law e-Journal
                                                                              Issue 1, Vol. 14 (2021)
                                                                              Section: Miscellaneous



during the case initiation: hear the witnesses, obtains expert’s opinions etc. In this stage,
holding an oral hearing (or successive oral hearings) is mandatory.
   The Emergency Procedure Gov. Decree removed the procedural steps involving personal
contacts from all the three stages of the procedure. (1) The Emergency Procedure Gov.
Decree ruled out the option of “live” personal hearing of the claimant: the court could obtain
the missing statements in writing or by using electronic means enabling the personal
identification of the interviewed person.58 (2) The decree prohibited the holding of oral
hearings in the case initiation stage. The court could only request the parties to outline their
case initiation statements in writing or by electronic means enabling the personal
identification of the interviewed person.59 (3) In the stage of hearing as to the merits, the
court had three options. The hearings had to be held primarily via electronic communication
networks or other means that are capable of simultaneous transmission of video and audio
signals. If the conditions for this were not met, the court could obtain further statements in
writing or by using electronic means enabling the personal identification of the interviewed
person. If the oncoming procedural step required a personal contribution was not viable by
the latter ways, the court had to establish the blocking of the proceedings and the stopping
of the procedural time limits until the end of the state of emergency or the elimination of the
obstacles of the blocked procedural step concerned.
   The Emergency Procedure Gov. Decree was in effect until the end of the first state of
emergency. The Transitional Act determined specific transitional provisions that enabled the
smooth resumption of “normal” procedural rules, according to the CCP Act.60 From 18 June
2020, “live” oral hearings could be held in the course of both the case initiation and the stage
as to the merits. In labour cases, lay judges participated in the chambers in first instance
again. However, in a few aspects, the Transitional Act preserved the rules of the emergency
period, including:
    − ensuring the opportunity to hold an oral hearing by electronic communication
         networks or other means that are capable of simultaneous transmission of video and
         audio signals;
    − deferring the mandatory application of procedural forms for parties without counsel;
    − opportunity for ordering that the hearing should be held in camera, if it is justified
         by pandemic-related safety measures.61
   By creating a flexible context of procedural rules in this period, the courts had a wider
margin of discretion in determining the most appropriate and safest way of contacting with
the parties.
   The courts were operating continuously during the whole second wave of the pandemic
(which reached its peak late December 2020) on the basis of the CCP Act and the special
rules laid down in the Transitional Act, even after the beginning of the second state of
emergency. As the figures of the first weeks of third wave (caused predominantly by the
Alpha variant of Covid19) showed that this latter wave appeared to be more severe than the


58 Emergency Procedure Gov. Decree, sec. 21(7).
59 Emergency Procedure Gov. Decree, sec. 21(2).
60 In detail: Transitional Act, sec. 136 to 137, 141 to 144.
61 Transitional Act, sec. 138, 140.



https://doi.org/10.6092/issn.1561-8048/13375                                                        157
     Szilvia Halmos                                                               Italian Labour Law e-Journal
                                                                                         Issue 1, Vol. 14 (2021)
                                                                                         Section: Miscellaneous



earlier ones, the Government introduced even stricter lockdowns and restrictive measures.
The prohibition of live hearings took effect, by the adoption of the Emergency Procedure
Gov. Decree262 no sooner than the introduction of the severest restriction package (including
general digital education), from 8 March 2021.
   The Emergency Procedure Gov. Decree2 contained basically the same special provisions
as the Emergency Procedure Gov. Decree for the period of “restricted protection”, which
ended on 19 April 2021. In addition, the above referred procedural rules laid down in the
Transitional Act applied as well. Thus, the procedural context given for judicial proceedings
was already familiar for the participants. From 20 April, hearing of the cases occurs under
the Transitional Act and the CCP Act again.
   Along with the restrictions under emergency procedural law, administrative measures
taken by the competent organisational units of the judiciary also envisaged to ensure the safe
and smooth operation of courts.
   A day after the introduction of the first state of emergency, the President of the NOJ
established the Emergency Cabinet, comprising four judges besides the President of the NOJ
in order to support the NOJ in carrying out the administrative tasks related to the pandemic.63
The Emergency Cabinet functioned during the first state of emergency,64 and issued a
number of recommendations on different questions of court administration related to the
pandemic situation. Such recommendations concerned for instance the rules on use of court
buildings65 as well as on the “document quarantine”.66 From 1 September 2020, similar
functions are performed by the Crisis Cabinet established by the President of the NOJ.67
   The President of the NOJ, with respect to the recommendations of the Emergency
Cabinet as well, has adopted several decisions, which are binding on the courts, as well as
non-binding recommendations. The most important decisions covered the following subject
matters:
    − temporary prohibition of organisation of plenary sessions of judges;68
    − regular mandatory ventilation of courtrooms and client reception areas;69
    − minimum requirements of courts’ policies on use of court buildings.70
   With regard of the aforementioned minimum requirements, general courts and the
regional appellate courts created their own policies on entering and use of court buildings.
These policies were several times amended taking into consideration the current status of the
pandemic and the procedural law. Some examples from the rules on the use of court
buildings:

62 112/2021. (III.6.) Government Decree on repeated application of specific rules of procedure during the state
of emergency (hereinafter: Emergency Procedure Gov. Decree2).
63 36.SZ/2020. (III.16.) OBHE decision on the establishment of the Emergency Cabinet.
64 It was dissolved by the 101.SZ/2020. (V.28.) OBHE decision, sec. 1, with effect from 28 May 2020.
65 Recommendation No. III. of the Emergency Cabinet.
66 Recommendations No. XIII. and from XVII. to XIX. of the Emergency Cabinet.
67 130.SZ/2020. (IX.1.) OBHE decision on the establishment of Crisis Cabinet.
68 147.SZ/2020. (XI.11.) OBHE decision on the prohibition of organisation of plenary sessions of judges.
69 148.SZ/2020. (XI.17.) OBHE decision on the mandatory ventilation of courtrooms and client reception

areas.
70 49.SZ/2020. (IV.3) OBHE decision on the regulation of staying in court buildings in the period of state of

emergency; 4/2020. (IX.15.) OBHE recommendation on the regulation of staying in court buildings in the
period of epidemic preparedness.

https://doi.org/10.6092/issn.1561-8048/13375                                                                   158
     Szilvia Halmos                                                             Italian Labour Law e-Journal
                                                                                       Issue 1, Vol. 14 (2021)
                                                                                       Section: Miscellaneous




    − specification of persons who are entitled to enter the court buildings (including
         judges and court staff members, clients and counsels, experts, witnesses, persons
         having right to inspect case documents etc., but excluding the relatives of judges and
         court staff members);
    − limitation on the time of staying in the court buildings (e.g. persons summoned to a
         hearing were expected to stay exclusively for the duration of the procedural step they
         participated in; time limitation on inspection of documents);
    − duty of registration of audience of hearings and media representatives, and the power
         of the court to limit the number of the audience;
    − restrictions on the operation of the registry and the information centres;
    − mandatory use of masks and disinfecting liquids;
    − prohibition of entering of persons who are subject to quarantine measures or are
         considered as contact persons;
    − mandatory ventilation of court rooms during the hearings every 40 minutes;
    − mandatory sanitation of court rooms after every hearing;
    − keeping a distance of min. 2 meters between the persons staying in the courtrooms;
    − measures that shall be taken by the court in the event if it is suspected that a
         participant of the procedural step is infected.71
    Non-compliance with the rules on use of court buildings can be considered, with respect
to the individual circumstances of the facts, either administrative or even criminal violations.
Judges and court staff members are liable to disciplinary action in the event to failure to
comply with these provisions.


4. Taking advantage of the existing and novel ways of litigation.

4.1. The “Digital Court Project” – an advantageous background for the crisis
management.

   In November 2019, the NOJ organised ceremonial closing events celebrating the
completion of one of the ever largest court administration project: the Digital Court Project
(DCP).72 At that time, no one could foresee that the multi-faceted implementation of
digitalisation of judiciary would not exclusively pursue the originally set objectives of the
project such as increasing of convenience of clients as well as judges, strengthening of the
confidence of society in the operation of courts, saving working time for the staff, enhancing
environmentally sound functioning of the courts. Instead, within a few months, as the global
pandemic created challenges that the world had never faced before, the upgraded
digitalisation of functioning of courts would become the precise factor that could ensure the
possibly uninterrupted provision of services of jurisdiction.

71 See Policy of the president of the Metropolitan General Court No. 2021.El.II.B.8/2., based on the relevant
recommendation of the President of the NOJ.
72 Press release (in Hungarian): https://birosag.hu/hirek/kategoria/birosagokrol/celba-ert-digitalis-birosag-

projekt, accessed 14 May 2021.

https://doi.org/10.6092/issn.1561-8048/13375                                                                 159
     Szilvia Halmos                                                              Italian Labour Law e-Journal
                                                                                        Issue 1, Vol. 14 (2021)
                                                                                        Section: Miscellaneous



    The first steps of digitalisation of judicial proceedings and court administration date back
to the mid-2000s, when, first of all, company registration procedure became exclusively
electronic. In the subsequent years, electronic communication with the courts became
gradually optional for the parties and their counsels in in civil, commercial, administrative
and labour cases. Later on, from 1 January 2016, electronic liaising with courts became
mandatory for legal counsels, public bodies and business entities, while it has still remained
optional for natural persons.
    The DCP, implemented from July 2018 to end 2019, was not only focused to the
improvement of technical background of electronic communication in the course of
litigation. The DCP included, in particular, the following main elements.
     − E-administration services (available on the courts' central website):
         − E-complaint: clients may submit their complaints by electronic way using their
             “client gate”, which are specific secured communication interfaces to receive and
             submit procedural documents.
         − Electronic information and warning system is designed to send information for the
             parties and their counsels about the status of their case and to provide them with
             some specific information on procedural acts at their request.
         − Electronic calculator of the duration of proceedings: the calculator indicates the estimated
             duration of proceedings in a specific subject matter before a specific court, based
             on judicial statistical data.73
         − Electronic payment service: the parties may perform their payment duties for the
             courts (e.g. procedure fees) through a secure electronic interface.
     − Publication of anonymous judicial decisions supplemented with a smart browsing system.
         Anonymous decisions are already published on the courts' central website, but the
         earlier used database was very difficult to use and did not provide means to carry out
         efficient searches to find the relevant decisions. The upgraded system of
         anonymisation and a modernised case-law database ensures a more convenient and
         effective surface.74
     − Introduction of an E-folder. E-folders were introduced from 1 January 2020 as the
         ultimate means for the complete digitalisation of the documentation of the cases.
         The whole case file is accessible online at any time for the clients, counsels and the
         judges. There is no need for personal appearance to exercise the right to access the
         case file.75
     − Introduction of the “Via Video” system. Via Video is designed to introduce a closed-circuit
         television (CCTV) system between different courtrooms and other endpoints (e.g. in
         penitentiary institutions) within the country, but it is also suitable for cross-border
         videoconferencing. The system enables the courts to carry out remote interviews and
         to produce video and sound recordings in the courtrooms. The infrastructure of the
         Via Video system is fitted for the performance of taking of evidence according to
         Council Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation between

73 https://eakta.birosag.hu/eljaras-idotartam-kalkulator (in Hungarian), accessed 14 May 2021.
74 https://eakta.birosag.hu/anonimizalt-hatarozatok (in Hungarian), accessed 21 May 2021.
75 https://eakta.birosag.hu/ (in Hungarian), accessed 21 May 2021.



https://doi.org/10.6092/issn.1561-8048/13375                                                                  160
     Szilvia Halmos                                                           Italian Labour Law e-Journal
                                                                                     Issue 1, Vol. 14 (2021)
                                                                                     Section: Miscellaneous



         the courts of the Member States in the taking of evidence in civil or commercial
         matters (Evidence Regulation) and the Hague Convention of 15 November 1965 on
         the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial
         Matters outside the European Union.
   The daily work of judges and judicial staff was supported by the following developments
implemented in the framework of the DCP:
    − Provision of modern IT devices: based on the judges' own choice, more than 2000 mobile
         devices (tablets, notebooks, e-book readers) have been purchased and provided for
         them. Working on these devices has granted a large flexibility for judges to determine
         the place and time of their work. (Working from home is, as a general rule, permitted
         for every judge after one year of service and occasionally permitted for judicial staff
         members as well.) The old, tape-based sound recorders, which were used for decades
         to produce minutes, were also replaced by high quality digital recorders.
    − An upgraded version of the Office software package was installed to all the IT means of
         judges. Appropriate softwares and the secure court network ensure the remote availability
         of the judges' personal account and database and provide all judges with access to
         the case files uploaded to the network. The E-Folder ensures even more flexibility for
         judges regarding their work.
    − Speech-to-text softwares based on the special vocabulary of judicial work can make the
         typing of decisions and minutes considerably faster. These are available for judges on
         a voluntary basis as well.
    − All public electronic registers are directly available for judges (such as register of
         companies, land register etc.).
    − Unified e-learning portal (“COOSPACE”). The portal, accessible for all judges and staff
         members, contains a large amount of e-learning materials and electronically available
         information related to past live courses (ppt, podcast). The portal provides the
         opportunity to take exams at the end of certain e-learning courses.
    − Court Benchbook. The Benchbook provides a high number of frequently used
         templates for judicial decisions in a number of different formats (to print, to edit, to
         edit with speech-to-text software).76
   It is easy to conclude that the high standard of digitalisation of functioning of the judiciary
proved to be a huge advantage when, as the pandemic started, live contacts were in general
subject to restrictions, and digital ways of communication were prioritised in all fields of life.


4.2. Practical challenges and experiences of labour litigation during the pandemic.

   Below, it is assessed, how judges and clients could take advantage of the existing digital
infrastructure or the means of written communication, and which difficulties they
encountered as regards live hearings.

76 Summarised by Halmos S., Csorba A., Fürjes A., Lele Z., Rózsavölgyi B. (labour court judges), Berkes B.
(language editor) for the purposes the XXVII Meeting of European Labour Court Judges, 25-26 September,
Geneva; organised by the International Labour Office.

https://doi.org/10.6092/issn.1561-8048/13375                                                               161
     Szilvia Halmos                                                             Italian Labour Law e-Journal
                                                                                       Issue 1, Vol. 14 (2021)
                                                                                       Section: Miscellaneous




     − Orally, in writing or online?
    In most labour cases, implementation of the procedural principle of directness is of crucial
importance. The personal interviewing of the employee (and sometimes the corporate
representative of the employer) used to take place during the stage of case initiation, as an
essential step of investigating the relevant facts. The interview is conducted by the judge, and
the opposition as well as the counsels may also pose questions and reflect to the oral
submission. Exploring a complicated chain of events which had lead to a dismissal, the
precise circumstances of a workplace accident, the occurrence of a continuing harassment
etc. is unlikely to be successful through the mere exchange of documents, and without
personal appearance and interviewing of the persons concerned. Consequently, in most of
labour cases, the stage of case initiation normally includes at least one oral hearing. However,
as it has been outlined above, there were two periods since the beginning of the pandemic,
where no (live) hearings could be scheduled. The emergency procedural rules provided the
opportunity of obtaining statements in writing or to hold hearings via electronic means. In
the light of the above, calling the parties for submission of their statements in writing
generally did not lead to satisfactory outcome. Therefore, labour courts had to consider the
application of the means of online hearing.
    As referred above, the Via Video system had already been available at numerous
courtrooms and other endpoints. The CCP Act acknowledged the hearing executed by Via
Video system as a regular and secure manner of interviewing a remote person and laid down
the procedural rules on conducting such an interview.77 Nevertheless, hearing through Via
Video did not necessarily meet all challenges caused by the pandemic. Namely, the endpoints
of Via Video are located in courtrooms and in other public premises (e.g. penitentiary
institutions), which could appear not to be sufficiently safe or accessible places for personal
appearance (especially for persons having underlying diseases or concerned by quarantine
measures). Having said this, the Emergency Procedural Gov. Decree explicitly referred to
other electronic communication means (than Via Video) that are capable of simultaneous
transmission of video and audio signals. The question came up: Which videochat applications
can be orderly and safely used as a framework of online hearings?
    Within a few weeks after the begin of the first state of emergency, the Kúria expressed its
(non-binding, but strongly indicative) opinion on this subject matter.78 As the Kúria outlined,
holding of a hearing on Skype for Business application can be considered as complying with
the rules of Emergency Procedure Gov. Decree. At that time (as part of the Office package
previously installed to every IT means distributed in the framework of DCP) Skype for
Business application was available for all judges, and guaranteed a secure channel of
communication with the parties. The opinion of the Kúria gave a detailed guideline on the
practical steps of organisation and execution of online hearings. This document represented
an encouragement for courts of lower instances to initiate the organisation of online hearings.
    The court could offer the possibility for the parties to participate in an online hearing,
when, with respect to the individual circumstances of the parties, it seemed to be an

77CCP Act, sec. 624 to 627.
78The Opinion of the Kúria No. 2/2020. (IV.20) PK on the conditions of holding of a hearing that are capable
of simultaneous transmission of video and audio signals.


https://doi.org/10.6092/issn.1561-8048/13375                                                                 162
 Szilvia Halmos                                                        Italian Labour Law e-Journal
                                                                              Issue 1, Vol. 14 (2021)
                                                                              Section: Miscellaneous



appropriate and accessible way of continuing the proceedings. The statutory law did not
require either the parties or even legal counsels to provide the technical and organisational
preconditions of attending an online hearing. While, as referred above, electronic
communication has been mandatory for legal counsels, business entities and public bodies
for years, even this group of participants of civil proceedings have not been required to be
available for online hearings, even though the minimum equipment for participation includes
no more than a smartphone with a headset and internet access.
    Nevertheless, in the first state of emergency, there was a general reluctance toward online
hearings. The potential participants were presumably somewhat concerned about this form
of hearing, because they were less familiar with the technical background and the procedural
requirements, which resulted in a low confidence in this solution. Further, the first promising
trends of the pandemic (in Hungary, the first wave had not so severe consequences and
passed by within approximately three months) inspired people to believe that Covid19 can
be overcome within a relatively short time. Hence, a relatively high number of parties
mutually initiated the temporary stay of the proceedings, or the court had to establish the
blocking of these latter.
    As time progressed, and the second and third wave of the pandemic proved to be much
longer-term than the first one, it became clear that a durable adaptation to the pandemic
situation and to more or less severe lockdowns is inevitable. This motivated judges and
clients to adopt an increasingly open attitude towards online solutions. The fact that all
judicial trainings and meetings took place on Skype for Business platforms in the states of
emergency, considerably reduced concerns about online hearings as well. Similarly, most of
the clients have gained sufficient experience in online meetings related to their own business
activity. As a result, the popularity of online hearings has grown: an increasing number of
judges offered this opportunity for the clients, and several clients, counsels and even
witnesses initiated this as well. Nevertheless, the willingness of judges and participants to use
online methods has considerably varied across the country: there has been labour courts
where not a single online hearing has been held, while in other courts, these methods have
started flourishing.
    In practice, online hearing could take various forms, adjusted to the individual requests,
needs and opportunities of the clients. The hybrid form of online hearing was the most
common, where only one client, a counsel or a witness joined the hearing by electronic means
(sometimes only for a certain phase of the hearing), and all other participants appeared in
person in the courtroom. Depending on the current technical background, everyone could
use his/her own device, or the remote participant could join by projection. In the period of
“restricted protection” under the Emergency Procedure Gov. Decree2 (see above), entirely
online hearings became also more frequent, where even the judge could attend the hearing
from his/her home.
    Although the statutory law does not provide a detailed set of rules on the orderly conduct
of these hearings, it became common practice that, both the judge and all other participants
establish at the beginning of the hearing that they do not perceive any circumstance that
would jeopardise the smooth and undisturbed conduction of the online hearing (this is
recorded in the minutes as well). The judge notifies the participants that they are not allowed
to record or stream the hearing.

https://doi.org/10.6092/issn.1561-8048/13375                                                        163
 Szilvia Halmos                                                       Italian Labour Law e-Journal
                                                                             Issue 1, Vol. 14 (2021)
                                                                             Section: Miscellaneous



    It is noteworthy that there is no well-established case law concerning the regular and fair
conduct of Skype hearings, as the concerned cases have not already reached the revisional
instance.
    There would have been a high demand from clients and witnesses having a permanent
residence abroad to join the hearings on Skype for business. In a technical sense, this option
would have seemed to be a very beneficial solution with special attention to travel
restrictions. However, involving participants in cross-border online hearings could have
raised concerns in the light of EU Evidence Regulation. While remote interviewing of
witnesses living abroad through Via Video system is entirely in compliance with the
provisions of the Evidence Regulation, online Skype hearings based on the emergency
procedure rules were not conducted according to the rules thereof. A national court has no
power to conduct any procedural step outside the country borders without authorisation
under EU legislation or an international agreement with the concerned foreign country.
Therefore, the application of Skype for cross-border hearings of witnesses and clients has
not become common.
    Via Video system has also been applied during the pandemic, especially where the client
was detained, in order to minimise contacts related to the transportation. Late April 2020,
the Via Video system was also enabled to provide a framework for online hearings for
participants joining with their own devices through a web link sent by the court. Thereby,
only the judge has to appear in the court building where the endpoint is located, other
participants of the conference call may choose their location. This method has also been
used for the purposes of labour court hearings, whenever it appeared to be appropriate and
viable.
     − The role of e-folders and electronic communication
    The introduction of E-folders, as outlined above, occurred almost simultaneously with
the beginning of the pandemic. The courts’ obligation to ensure online inspection of the files
for the clients covered the cases started from 1 January 2020. The proportion of clients and
counsels taking advantage of the possibility of online inspection in times of restrictions on
the client receptions services of the courts was not particularly large. For instance, the
number of applications of the clients for access of E-folders has not exceeded 13 in any
months since the beginning of the pandemic at the Labour Department of the Budapest-
Metropolitan General Court. This being said, it should be reminded that the electronic
communication with the most of the clients (business entities, public bodies) and legal
counsels have become mandatory for years, which enables them to possess all documents
related to the litigation in an electronic format. Any natural person can request to use
electronic communication as well, if it is more convenient for him/her. The high degree of
availability of electronic documents of the proceedings ensured by the mandatory electronic
communication combined with the accessibility of e-folder could considerably decrease the
demand for personal appearance in court buildings for the purpose of inspection of
documents.
     − The judge as the supervisor of rules on use of court buildings
    According to the CCP Act, the court is responsible for the maintenance of the order and
safeguard the dignity of the hearing and other procedural acts. The means of disciplining of


https://doi.org/10.6092/issn.1561-8048/13375                                                       164
     Szilvia Halmos                                                    Italian Labour Law e-Journal
                                                                              Issue 1, Vol. 14 (2021)
                                                                              Section: Miscellaneous



the participants that are available for the court are also laid down in the CCP Act (limiting
the number of the audience, calling the participants to order, remove persons from the
hearing, imposing fines etc.).79 During the pandemic, the court’s responsibility for
maintaining order in the courtroom includes the guaranteeing of the implementation of
pandemic-related safety rules.
    First of all, according to the established practice, the courts informed every person
summoned to the hearing about the main rules on use of court buildings, which could take
place by the attachment of a short guide to the writ of summons and/or hanging the guide
on the walls of the court buildings.
    At the beginning of the hearing, the judge is expected to interview all appeared persons
whether they are aware of the pandemic-related requirements of personal appearance, and
whether they meet them. Since the recording of their statements can involve sensitive
personal data (i.e. about health condition), the participants may make their statements in
writing, processed as a confidential document. If the participant reports that he/she is
prohibited to appear at the court according to the rules on use of court buildings, the court
shall take the appropriate measures laid down in the court’s policy (e.g. interruption of the
procedural act, removing the concerned person from the courtroom, sending him/her into
an isolate room, notification of the competent authority etc.). During the hearing, the judge
is also responsible for observing the courtroom protocol, including the rules on using of
mask and keeping distance.
    Many difficulties arise from the assessments of justification of omissions of hearings or
deadlines. If a client, a witness or an expert is prohibited to appear before the court according
to the rules on use of building, it is certainly considered as a justified omission, and cannot
trigger any sanctions. According to the CCP Act, the application for justification should
contain the reason for the omission and the circumstances to verify presumptively that the
person in question is not at fault. As to whether the conditions for the application are
satisfied, the court shall decide on an equitable basis.80 The main problem was that in many
cases the absent or omitting person cannot be expected to adduce his/her allegations on the
cause of the absence or omission, and the judge has no professional competence to decide
whether the omission or the absence is really justified. For example it is very difficult to
assess whether an alleged contact with a presumably infectious third person; a medical attest
on an underlying illness that could make the appearance even more hazardous; or the
existence of mild respiratory symptoms without a positive test amounts to sufficient
justification of absence. In doubtful cases the courts try to strike a fair balance between
equitable consideration of such references and endeavouring to complete the cases within a
reasonable time.




79   CCP Act, sec. 234 to 236.
80   CCP Act, sec. 151(2), 153(3).

https://doi.org/10.6092/issn.1561-8048/13375                                                        165
 Szilvia Halmos                                                           Italian Labour Law e-Journal
                                                                                 Issue 1, Vol. 14 (2021)
                                                                                 Section: Miscellaneous



3. Conclusions.

    In the pre-Covid years, Hungarian judiciary implemented the “Digital Court Project”,
which provided the digital based functioning of courts in several aspects. The project
involved the introduction of “e-folders”, secured videochat hearings as well as the creation
of the opportunity of home office for judges and the judicial staff. Hence, even though the
emergency legislation restricted the functioning of judiciary for certain periods, a set of tools
were ready to use for the courts to continue the cases on a digital platform as possible.
    Employment law was subject to specific amendments during the periods of emergency,
which, on the one hand, pursued to protect jobs and flexibilise employment, on the other
hand, restricted workers’ individual and collective rights. Therefore, there was a particular
interest in ensuring the continuous availability of labour judiciary, which is the dominant
forum of settlement of labour disputes in Hungary. Correspondingly, labour courts have
asserted to take advantage of emergency procedural rules targeted to reduce human contacts,
including the increasingly widespread application of videochat hearings. At the same time,
strict safety provisions have been introduced on the use of court buildings in order to protect
the clients and the staff, which have had to be also supervised partly by the judges during the
traditional (“live”) hearings.
    As a remarkable development, it should be highlighted that the labour courts’ and clients’
increasing trust related to the use of online means, combined with the availability of the
appropriate technical infrastructure already existing before the pandemic as well as a
sufficiently flexible emergency procedural rules, have resulted that many of the cases could
have been continued during the lockdown periods. Along with some uncertainties about the
orderly and smooth conduction of online hearings, the extra tasks in connection with the
safeguarding of safety of participants on live hearings and the difficulties related to the
assessment of applications of justification of omissions, labour courts have made significant
efforts to ensure the effective enforcement of right to access to justice of actors in the world
of labour.




                                               Bibliography


Balázs I., Hoffman I., Hungler S., “Veled Uram, de nélküled” – állam, önkormányzatok,
munkáltatók a koronavírus idején [”In Your Name, My Lord, yet Without You” – State, Municipalities
and     Employers During the               Pandemic], in Magyar Tudomány,                5,    2021.,
https://mersz.hu/hivatkozas/matud202105_f57945_p1#matud202105_f57945_p1,
accessed 21 May 2021;
Csorba A., Milyen típusú munkaügyi perek várhatók a koronavírus hatására? [What types of labour law
disputes are expected related to coronavirus pandemic?], in Magyar Munkajog E-folyóirat, 1, 2020, 29-
37;




https://doi.org/10.6092/issn.1561-8048/13375                                                           166
 Szilvia Halmos                                                           Italian Labour Law e-Journal
                                                                                 Issue 1, Vol. 14 (2021)
                                                                                 Section: Miscellaneous



Horváth I., Petrovics Z., COVID ’19 – Hungary. Measures concerning employment, collective labour
law and social security, in Noticias CIELO, Número especial Noticias CIELO sobre COVID-19
y relaciones de trabajo, 2020, www.cielolaboral.com, accessed 14 May 2021;
Horváth I., Petrovics Z., COVID ’19 – Hungary (Part 2). Measures concerning employment, collective
labour law and social security, in Noticias CIELO, 4, 2020, www.cielolaboral.com, accessed 14
May 2021;
Kun A., Tájékoztató a Munkaügyi Tanácsadó és Vitarendező Szolgálat (MTVSZ) első (2016–2019)
és második (2019–2021) működési periódusáról [„Information sheet on the first (2016-2019) and the
second (2019-2012) periods of functioning of the Labour Advisory and Dispute Settlement Service”], in
Munkajog, 3, 2019, 65-69;
Kun A., HUNGARY ⎯ The impact of the labour law measures taken by the authorities: reflections one
year after the official recognition of Covid-19 as a pandemic, in Noticias CIELO, Número especial
Noticias CIELO sobre las consecuencias sociales del COVID-19, 3, 2021,
www.cielolaboral.com, accessed 15 May 2021;
Molnár B., Gondolatok a home office-ról általában és vírus idején, in Magyar Munkajog E-folyóirat, 1,
2020, 38-46, http://hllj.hu › letolt › 03_MolnarB_M_hllj_2020_1, accessed 22 May 2021.




Copyright © 2021 Szilvia Halmos. This article is released under a Creative Commons
Attribution 4.0 International License




https://doi.org/10.6092/issn.1561-8048/13375                                                           167
