No “best before date” for occupational Integration Management (bEM) in the Case of Dismissals due to Illness

In its judgement of 18 November 2021 – 2 AZR 138/21, the Federal Labour Court (Bundesarbeitsgericht – BAG) ruled that the employer must in principle conduct a new occupational integration management (betriebliches Eingliederungsmanagement – bEM) if the employee was again continuously or repeatedly incapacitated for work for more than six weeks within one year after completion of the bEM.

The Federal Labour Court was based on the following case:

The employee, who had been employed since 2001, was incapacitated for work for more than six weeks in each of the years 2017, 2018 and 2019. At the invitation of his employer, the parties held a meeting on 5 March 2019 to conduct an occupational integration management (bEM). During the discussion, the employee stated that no “additional expert (e.g. company doctor, occupational health and safety specialist)” should be involved. Even after 05.03.2019, the employee was sick on 79 working days, i.e. for more than six weeks, until the termination, which was announced on 26.02.2020.

The employee brought an action for protection against dismissal and objected to the dismissal on the grounds of illness, citing the non-implementation of a bEM. The Federal Labour Court held that the dismissal was invalid due to a violation of the principle of proportionality. The employer had not shown that there was no reasonable possibility to avoid the dismissal by taking more lenient measures.

Mitigating measures could be, in particular, the reorganisation of the previous work area or the continued employment of the employee in another job – corresponding to his state of health. Furthermore, the principle of proportionality could give rise to the employer’s obligation to enable the employee, before dismissal, to take specific treatment measures, if necessary, in order to exclude or at least significantly reduce future absences.

These milder means can be determined within the framework of a bEM pursuant to section 167 subsection 2 sentence 1 SGB IX. Pursuant to this norm, a bEM must be carried out if the employee has been continuously or repeatedly incapacitated for work for more than six weeks within one year.

If the employer does not comply with this obligation, it must demonstrate and prove that a bEM could not have contributed to counteracting new periods of sickness or the continuation of incapacity to work and to maintaining the employment relationship.

Up to now, it has not been clarified by the BAG whether this duty to carry out a bEM is only revived annually or arises again after only six weeks after the conclusion of the bEM.

According to the BAG’s decision, section 167, subsection 2, sentence 1, SGB IX, now fundamentally justifies a renewed obligation to conduct a bEM if the employee is again ill for more than six weeks within one year after completion of the previous bEM.

The employer would therefore have had to carry out another bEM before issuing the notice of termination on 26 February 2020, as further periods of sickness of more than six weeks had been recorded since the first bEM of 5 March 2019. The employer was also not able to show that a renewed bEM would not have produced a positive result because there had not been any noteworthy results before. The failure to carry out a renewed bEM had led to the disproportionality of the dismissal.

The BAG’s ruling leads to a clarification of controversial legal questions regarding occupational integration management, which is now increasingly becoming a risk for employers. The reasons for this are the formal requirements, which are still largely unclear, and the short periods of time that are actually used to issue a notice of termination.  This means that employers often only have six weeks to issue a notice of dismissal after a bEM has been completed.

For this reason, dismissals due to illness, which are risky anyway, must be prepared accordingly. The case law, which is still developing in this area, should be followed and taken into account before any dismissal.

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