BAG confirms: Strikebreaking bonuses are permitted!

With the current ruling of August 14, 2018 (Az. 1 AZR 287/17), the Federal Labor Court (BAG) confirmed that an employer on strike is generally entitled to prevent employees who have been called on strike from taking part in the strike by promising a strike-breaking bonus. The BAG has thus confirmed its earlier case law in this regard. Employees who go on strike cannot therefore claim the strike-breaking bonus based on the principle of equal treatment under labor law.

It was precisely the latter that led to the decisive legal dispute: after an employer had promised and paid a strike-breaking bonus to those employees who did not take part in the impending strike but instead went about their regular work, a striking employee suddenly demanded payment of the bonus through the labor court . He argued that this was required by the principle of equal treatment under labor law.
The employee was successful neither in the factual instances before the Labor Court and the State Labor Court nor in the appeal instance before the Federal Labor Court. The BAG saw unequal treatment by promising to pay bonuses to all employees willing to work. Undoubtedly, the bonus payment does indeed lead to striking and non-striking employees being treated unequally. However, the BAG considered this unequal treatment to be justified for objective reasons. These objective reasons are that the employer wants to use the strike-breaking bonus to prevent operational disruptions and thus counteract the pressure to strike. This is a fundamentally permissible industrial action by the employer. The principle of proportionality applies to this. Even after this, the strike-breaking bonus was not objectionable in the present case. This was true regardless of the fact that the strike-breaking bonus was several times higher than the daily earnings of the striking workers. A strike-breaking bonus does not constitute a violation of the prohibition of disciplinary measures in Section 612 a of the German Civil Code (BGB). This can only be different if the employer provides the special allowance to the non-striking employees after the end of the industrial action, i.e. not, as in the present case, preventing the employees from participating want to stop the strike.
The confirmation of the Federal Labor Court's case law on the admissibility of strike-breaking bonuses is to be welcomed. After jurisprudence in the past has made employee-friendly rulings on the right to strike (keyword: flash mob), employers are now also being granted an antidote that may be costly but nevertheless effective.