Germany: The employer is entitled to prevent employees from participating in a strike by promising a so-called “strike-breaking” premium

In 2015 and 2016 the employees of an establishment of a retail company were on strike for several days after a German trade union had called the strike. The trade union exerted pressure to reach a collective bargaining agreement. Before the commencement of the strike the employer tried to prevent his employees from participating in the strike by announcing that he will pay a strike-breaker premium of 200 Euros (later 100 Euros) per day to everyone who is not participating in the strike.

The plaintiff is a full-time sales assistant in a retail establishment earning 1,480 Euros per year. The plaintiff followed the call for strike and withheld his labor for the whole strike period. Subsequently, he claimed the payment of strike-breaker premiums by legal action in the total amount of 1,200 Euros from his employer. He argued with the so-called labor law principle of equality. His action was unsuccessful in all instances.

The highest German labor court ruled that promising strike-breaker premiums to all strike-breakers constitutes an unequal treatment of strikers and strike-breakers. However, this unequal treatment can be justified for industrial action reasons.

The social opponents in a collective bargaining conflict are free to choose their instruments to face an industrial action. Paying strike-breaker premiums are, in principle, legal if paid out during the strike. Employers are allowed to counteract the pressure of strikes with appropriate voluntary special benefits, which are supposed to motivate employees to work during the period of a strike in order to reduce operational disruptions. The principle of proportionality applies to the actions undertaken by the employer to face industrial actions. In the case in hand, the offered strike-breaking premiums were not inappropriate, even if they were several times higher than the usual daily earnings of the strikers.