Employment Law2026-11-11

Warning strikes at your business: can you dismiss those who join, discipline those who don't, and dock their pay?

When pay negotiations escalate, management has hours — not weeks — to decide how to respond. What holds up legally when it comes to dismissal, written warnings and pay deductions, and what will rebound on you.

Pickets are standing at the works entrance, part of your workforce is away from the machines, and a decision is now expected of you — in hours, not weeks. A round of pay bargaining escalates, warning strikes spread to further sites, and businesses that gave it no thought until yesterday suddenly find themselves affected. In a situation like this, the obvious response is often precisely the one you pay dearly for later.

In short

Anyone who takes part in a lawful strike is not breaking a contract but exercising a fundamental right (Art. 9(3) of the Basic Law). So you cannot dismiss anyone or issue a written warning for it. The pay for the strike period, on the other hand, you do not have to pay — that is not a sanction but the automatic consequence of the strike. You may issue a written warning to those who do not join the strike only where they genuinely refuse a service they owe under their contract. That happens less often than it looks from the shop floor. Everything turns on one preliminary question: was the call to strike lawful?

How I can help you

I assess the call to strike within a short time: who is behind it, the aim of the strike, the peace obligation, and the industrial-action measures used
I evaluate every planned response before you act on it — dismissal, written warning, pay deduction, redistributed work
I represent you before the Labour Court, including urgent interim relief against the blocking of access routes
I clarify what requires the works council’s co-determination and what does not
I check whether you may deploy agency workers and external personnel during the dispute
I draft what you put in writing to your workforce so that no one can read it as reprisal

The preliminary question: is this strike lawful?

Everything else hangs on it. In essence, four points are decisive:

Who is behind it. The strike must be led, or subsequently adopted, by a union with the capacity to conclude collective agreements. If the workforce downs tools spontaneously with no union behind it, that is not a strike in the legal sense but a refusal to work.

The aim. A strike may be held for an aim that can be settled by collective agreement. A strike intended, say, to force a business decision is not covered — that is not a matter for collective bargaining.

The peace obligation. If a collective agreement covering the matter in dispute is still running, the strike is unlawful. This is where warning strikes most often come unstuck in practice. Check when the term expires, and whether the demand concerns the same subject matter.

Industrial-action measures. Pickets may stand outside the premises and address those willing to work, including firmly. Where they physically bar entrances and access routes, that is generally no longer covered. How far pickets may go onto company premises depends on the circumstances of the individual case. Check that before you enforce your right to control the premises.

One point matters for how you deal with the works council: the council as a body may not take industrial action against you (§ 74(2) sentence 1 BetrVG). Its members, however, may take part in the strike as union members — their union activity is unaffected (§ 74(3) BetrVG). You need to keep this distinction in mind before you approach a works council member personally.

Dismissing and warning those who take part in the strike

During a lawful strike, both the duty to work and the duty to pay are suspended. So anyone who does not work is in breach of no duty — which means there is no starting point even for a conduct-related dismissal (§ 1(2) sentence 1 KSchG), let alone for a compelling reason for summary dismissal (§ 626(1) BGB). On top of this: measures intended to restrict or obstruct freedom of association are unlawful under Art. 9(3) sentence 2 of the Basic Law.

The Dismissal Protection Act does not apply to dismissals that are merely a measure in the economic dispute (§ 25 KSchG). That does not help you here: such dismissals do not thereby escape scrutiny but are instead measured against the law of industrial action — and there, dismissal as a weapon is in practice no usable route.

The position is different where the stoppage is no strike at all (no union behind it), or where individual employees breach duties of their own accord — criminal damage, coercion, refusal of a valid instruction unconnected with the strike. Then the ordinary rules apply, including a written warning as the first step. Even then the rule holds: you may not sanction the strike across the board but must substantiate the individual allegation specifically.

Your risk if you get it wrong: the dismissal is void, you pay default-of-acceptance wages for the entire length of the proceedings, you have to remove the written warning from the personnel file, and the union can demand that you cease and desist. Disputes between parties with bargaining capacity over industrial-action measures fall exclusively to the Labour Courts (§ 2(1) no. 2 ArbGG) — and these cases run as urgent interim relief within days.

Those who don’t join the strike: warnings, strike work, overtime

This is where most of the avoidable mistakes arise.

Strike work. Your right to give instructions extends only as far as the employment contract (§ 106 sentence 1 GewO). You may deploy those willing to work within that scope, including on the tasks of those on strike. Where the contract does not cover the task you assign, however, the instruction is ineffective — a written warning because someone refuses it is then unfounded and has to come back out of the file later.

Overtime and shift changes. If you temporarily extend the normal working hours, or shift their start, end and distribution, the works council has to co-determine (§ 87(1) nos. 2 and 3 BetrVG). The strike does not simply override this right. If you order additional work without involving the works council, the employees need not comply — and your written warning will not hold. Where a measure serves directly to counter the strike, how far co-determination reaches is disputed. Do not rely on its falling away.

Agency workers. If your business is directly affected by the industrial dispute, you may not let agency workers work (§ 11(5) sentence 1 AÜG). There is one exception: you ensure that they take on no tasks previously carried out by those on strike or by their stand-ins (§ 11(5) sentence 2 AÜG). How long the agency workers have already been at the business makes no difference here. They are free to refuse in any event (§ 11(5) sentence 3 AÜG).

Those who cannot get in. Anyone kept out of the works by a picket is in breach of no duty. A written warning is the wrong lever here — against blockades you proceed against those organising them, not against your own workforce.

Pay: what you may deduct and what you may not

Those on strike. For the strike period, the claim to pay falls away. The calculation for a monthly salary: monthly pay divided by the target working hours for the month, multiplied by the hours lost — unless a collective or employment agreement lays down its own division rule. The basis is the time records. Going beyond this is dangerous: if you treat strike days like unexcused absence, cut bonuses or withhold voluntary benefits, that can amount to a detriment imposed because someone lawfully exercised a right (§ 612a BGB), and additionally fall foul of Art. 9(3) sentence 2 of the Basic Law.

Those willing to work whom you cannot employ. Here § 615 sentence 3 BGB applies: you have to pay only in so far as you bear the risk of the stoppage — and the strike-related risk is not yours to bear. Pay then falls away where you cannot keep people employed for operational reasons or where it is economically unreasonable, and this holds even where your business is only indirectly affected because supplies of intermediate products fail. The decisive point is this: you shut down the affected area and document that decision. Without this basis, you remain in default of acceptance under § 615 sentence 1 BGB — you pay in full with no work done.

In doing so, do not count on benefits from the Federal Employment Agency: in industrial disputes the duty of neutrality applies, and the claim to unemployment benefit may be suspended (§ 160 SGB III).

A typical case

A supplier with just under 300 employees is hit by a two-day warning strike during an ongoing round of pay bargaining. Assembly is at a standstill; logistics could in theory carry on working. Management sends an email to everyone: strike days count as unpaid absence and will be taken into account for the annual bonus; anyone who fails to appear must reckon with employment-law consequences. At the same time it orders Saturday work for those not on strike without involving the works council, and deploys two long-serving agency workers in assembly.

Outcome: the pay deduction itself was correct. The reference to the bonus and the threatened consequences hand the union the basis for proceedings, the Saturday work cannot be enforced without co-determination, and the agency workers are not permitted to work there under § 11(5) AÜG. Three avoidable openings for attack — created in two hours, cleared up over months.

Common mistakes

A blanket threat to the workforce. A single sentence about “employment-law consequences” can lift the entire dispute onto a second plane.
Asking in advance who will strike. Tempting as a planning tool, generally impermissible as a means of pressure. What is permissible is to record the time lost afterwards for payroll purposes.
Docking pay from those willing to work without having documented the shutdown. Simply failing to pay lands you in default of acceptance.
Overriding co-determination because it’s urgent. It is precisely these orders that do not hold up later.
Just “letting agency workers carry on”. The prohibition turns on whether the business is affected, not on when the assignment began.
Enforcing your right to control the premises yourself. Against blockades the route runs through the Labour Court, not through an escalation by works security.

Perhaps, once it has been assessed, it turns out not to be about the strike at all but about a genuine breach of duty by individual employees. In that case the written warning decides whether a later dismissal will hold. What it has to achieve for that is set out on the page on conduct-related dismissal.

Frequently asked questions

Can I dismiss an employee who has called for a strike?

Not in the case of a lawful strike led by a union. The call to take part is covered by freedom of association, and measures against it are unlawful under Art. 9(3) sentence 2 of the Basic Law. The position may be different where there was a call to down tools with no union basis — that is then not a strike but a breach of duty, though one that has to be substantiated in the individual case.

Do I have to pay those willing to work when the business is at a standstill because of the strike?

As a rule, no. Under § 615 sentence 3 BGB the duty to pay depends on who bears the risk of the stoppage, and the strike-related risk does not lie with the employer. The condition is that keeping people employed is operationally impossible or economically unreasonable and that you document this convincingly.

Can I order overtime from those not on strike to cover the lost time?

Only with the works council. The temporary extension of normal working hours requires co-determination under § 87(1) no. 3 BetrVG, and the shifting of start and end under no. 2. Without its involvement the order cannot be enforced, and a written warning for refusal will not hold.

Can I deploy agency workers who were already at the business before the strike?

Only under the condition in § 11(5) sentence 2 AÜG: you must ensure that they take on no tasks previously carried out by those on strike or by their stand-ins. On their existing tasks, untouched by this, they may carry on working. They are free to refuse to work in the affected business in any event.

May the works council take part in the strike?

Not as a body: industrial action between employer and works council is impermissible under § 74(2) sentence 1 BetrVG. The individual members, however, may join the strike as union members, because their union activity is not restricted by holding office (§ 74(3) BetrVG). You should be aware of this distinction before you take issue with a member’s conduct.

Your next step

The decisions that cause damage in a warning strike are almost always taken in the first few hours — and they are taken in writing. Before the next email goes out to the workforce, the next order is issued or payroll is run, have the call to strike and your planned response assessed. I represent employers in employment law throughout Germany, by video or telephone, and where there is a need at short notice I can be reached at short notice too. I speak openly about costs in the first consultation — on the basis of the RVG or a fee agreement, and on request I will check whether an existing legal-expenses insurance policy covers them.

This article gives general information and is no substitute for an assessment of your specific case.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-11-11.

Christian Czirnich, Rechtsanwalt (attorney at law), Kirchseeon near Munich

Tell me how you want to respond to the strike at your business – I will take a look.

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