Employer may deter its employees from striking by promising a bonus

The lawsuit was brought by an employee of a retail company who had taken part in several strikes at his workplace in 2015 and 2016. Before the strike began, the employer promised in a company notice to pay all employees who did not take part in the strike and continued with their regular work a strike break bonus of EUR 200 gross per strike day, and later EUR 100 gross. The plaintiff, who works as a salesman, stopped work on several days due to the strike, but nevertheless demanded the strike-breaking bonus on the basis of the principle of equal treatment under labor law.

After the plaintiff was unsuccessful in the lower courts, he lodged an appeal. Like the lower courts, the Federal Labor Court dismissed the claim. In the opinion of the Federal Labor Court, the employer wanted to counter operational disruptions and thus counteract the pressure to strike with the voluntary special benefit, which it referred to as a strike-breaking bonus. In light of the freedom of action applicable to all parties, the Federal Labor Court considers this to be a permissible measure on the part of the employer. The Federal Labor Court also does not consider the amount of the promised bonus, which exceeded the daily earnings of a salesperson several times over, to be unreasonably high.

Conclusion: Since the AÜG reform, which came into force on April 1, 2017, employers are not permitted to use temporary workers who were not yet working in the company at the start of the strike. With its ruling on the permissibility of offering a strikebreaker bonus to its own employees, the Federal Labor Court has somewhat mitigated the consequences of the ban on the use of temporary workers and strengthened the employer's rights in the event of a strike.