Germany Update: No “minimum retention date” for carrying out occupational integration management (bEM)

Background

It is widely known in human resources departments that sick leave should be preceded by so-called in-company bEM (occupational integration management) procedures in order to avoid disadvantages on the employer side in the subsequent dismissal protection procedure. Thus, the bEM became a quasi-compulsory program in the run-up to a personal dismissal. Various details have so far been unclear; among other things, the question of how long a bEM procedure may be allowed to take place before the dismissal order if there were again relevant sick periods in the meantime.

In its judgment of 9 December 2020, the LAG Düsseldorf had to decide on the effectiveness of an ordinary dismissal due to illness and clarified one of these questions. The decision was based on the typical case of the employer properly canceling an employee who had been ill for years and was incapacitated as a cause. The employee brought an action for protection against dismissal against that dismissal. The action was based, inter alia, on the fact that the employer had no longer offered bEM immediately before the dismissal was made and that not everything had been tried to maintain his job. The employer countered that a bEM had been carried out which was less than 12 months ago at the time of dismissal. This is entirely sufficient for the effectiveness of a dismissal.

Pursuant to Paragraph 167(2) of the SGB IX, the employer is obliged to carry out a bEM if one of his employees has been incapacitated or repeatedly incapacitated for more than six weeks during the course of the previous twelve months. The aim of the bEM is to find out the health impairments caused by the employee’s previous downtime and the possibilities, for example, by redesigning the workplace or supporting measures, to reduce the hours of incapacity for work for the future. The aim is to secure the workplace of the employee concerned as permanently as possible.

In practice, however, in the event of dismissal, the employer regularly asks when and under what conditions the employer must (again) carry out such a bEM before the dismissal is declared.

The decision of the LAG Düsseldorf

In its decision of 9 December 2020, the LAG Düsseldorf dealt intensively with this issue and decided that, in principle, a bEM must be re-implemented by the employer before the employer submits a dismissal due to illness if the employee concerned becomes again uninterrupted or repeatedly incapacitated for more than six weeks after the completion of the first bEM within one year. According to the Court, the bEM does not have a ‘minimum shelf life date’. That is apparent from the interpretation of the law and the meaning and purpose of the bEM. It would be contrary to this comprehensive purpose of protection if the implementation of a bEM were limited in number to one procedure within one year.

Conclusion and outlook

The LAG Düsseldorf specifies the employer’s obligations and thus increases the effort that has to be made in advance to a dismissal. Employers should check the extent of the last bEM and the extent to which new periods of incapacity have occurred since its conclusion before announcing dismissal due to illness. Care must be taken to carry out a bEM again if the employee concerned has been incapacitated for at least six weeks. Otherwise, significant disadvantages are to be expected with regard to the burden of presentation and proof in the subsequent dismissal protection proceedings.

The LAG Düsseldorf approved the appeal in the judgment. It remains to be seen whether the Federal Labour Court confirms this case law or takes a different path. In our opinion, it is more likely that the interpretation of the law of the LAG Düsseldorf will be confirmed.

By Samuel Gruber, MELCHERS, Germany, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact germany@transatlanticlaw.com

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