Industrial Action in the Workplace – What Employers Need to Know

Strikes are a reality in almost every sector. Recently, the NGG called a warning strike in Frankfurt am Main. Hotel businesses were particularly affected during one of the most important trade fairs of the year. However well employers may prepare operationally for such situations, legal questions regularly arise during a strike. In particular, there is often uncertainty as to which measures may lawfully be taken in the context of a strike and what options are available to employers in response.

In practice, the question quickly arises as to how far strike measures may go and where the line between permissible industrial action and unlawful conduct is drawn. While trade unions may exert effective pressure, employers are not required to tolerate unlawful obstruction or escalation.

“Classic” strike measures such as picketing or publicity-oriented actions outside the business premises are permissible. Trade unions may also address employees who are not participating in the strike, appeal for solidarity and seek to persuade further employees to join the strike. Banners, leaflets and rallies likewise form part of permissible industrial action. Loud protest activities are also part of industrial action. Speakers, whistles and drums are generally permissible, provided they remain within the bounds of socially acceptable forms of protest.

The threshold of unlawfulness is crossed, however, where actual coercion is exerted beyond the pressure typically associated with industrial action. A common example is the blocking of factory gates or access routes. Information pickets or symbolic actions outside the premises are often still regarded as permissible. However, where entrances are physically blocked, vehicles are stopped, or employees willing to work or guests or customers are prevented from entering the premises will generally amount to unlawful obstruction. In such cases, there may be an interference with possession, an unlawful interference with the established and operating business, or even criminal liability. The same applies to the treatment of employees who are not participating in the strike. Intimidation, threats or targeted hostility toward so-called “strikebreakers” will generally exceed the limits of permissible industrial action. Persistent noise, substantial disturbances or disproportionate impairments of business operations may also be unlawful.

Therefore, it is important for employers to distinguish between permissible pressure typical of industrial action and unlawful measures. Not every strike measure that causes economic burden is automatically impermissible. At the same time, employers do not have to tolerate unlawful interference with their business operations. Employers may seek interim judicial relief against individual industrial action measures in order to obtain prompt remedial action.

Although employers often initially feel unable to act in strike situations, a range of organizational and industrial-action-related response options is available.

Organizational Measures

The first response to strikes is usually organizational adjustment. Internal reassignments or a focus on core business areas may be considered, for example. Ordering overtime may also be an option, although the co-determination rights of the works council, which continue to apply unchanged during a strike, must be observed.

Coordinated communication is equally important – both with employees and with customers, business partners or the public. Particularly in emotionally charged industrial action situations, factual and de-escalating communication is essential.

Use of External Personnel and Strikebreaking Bonuses

When deploying external personnel, caution is required. As a general rule, temporary agency workers may not be used to take over the duties of employees participating in a strike. This also extends to employees who assume the duties of striking colleagues and would need to be replaced in their original role. However, the use of temporary agency workers remains permissible where it had already been planned for operational reasons before the employer became aware of the strike, for instance because the regular workforce would in any event have been insufficient due to the particular workload during a trade fair period. In all cases, the reasons for the deployment and, ideally, the time at which the personnel were ordered should be carefully documented in order to counter any appearance of an unlawful strikebreaking measure.

One industrial action instrument recognized by the courts and often underestimated in practice is the so-called strikebreaking bonus. Under such an arrangement, employees who continue working despite the strike receive a financial bonus. The prerequisite, however, is that the bonus be proportionate, particularly in terms of its amount, and that it be announced during the ongoing industrial action or already in advance. Retroactive special payments, in contrast, may be unlawful.

Notwithstanding the available response options, employers may not sanction employees for lawful participation in a strike. Written warnings or dismissals may be considered only in exceptional cases involving unlawful conduct by striking employees – for example, violence, blockades or damage to property.

Careful documentation of specific incidents is therefore particularly important, for example by keeping a strike log. Blanket measures against striking employees are unlawful.

Strikes rarely appear entirely out of the blue. Collective bargaining disputes often become apparent in advance. Employers should use this time to make organizational and communication-related preparations.

The first key step is clear internal alignment: Who makes decisions? Which areas are particularly critical? How can employees be prepared if they may become involved in communications with striking employees as an extension of the employer?

A realistic contingency plan is equally important. Companies should review at an early stage which activities must necessarily be maintained and what alternatives are available. In this context, entering into emergency service arrangements may also be advisable. Here, too, the co-determination rights of the works council must be observed.

Last but not least, the public perception of industrial action is becoming increasingly important. Escalating or unprofessional responses can cause significant reputational damage. A calm and factual communication strategy is therefore just as important as the employment law assessment of the situation.