Die aktuelle Entscheidung des BAG zum betrieblichen Eingliederungsmanagement
At the end of last year, we already reported on the changed legal situation in connection with the implementation of a company integration management ptocess (bEM) by which employers discuss options to address health issues with employees who had longer health related absences: Trust is good, control is better? In a recent decision, the German Federal Labor Court (BAG) has now clarified another aspect with regard to bEM: a completed bEM does not have a best-before date of one year.
Initial situation - significance of the bEM for a dismissal due to illness
If the employer wishes to issue a notice of termination due to illness, he must regularly offer and - if the employee wishes - carry out a proper bEM before issuing such a notice of termination. According to case law, the implementation of a bEM is not a prerequisite for the effectiveness of a dismissal due to illness. However, if the employer does not comply with this obligation, it must demonstrate and, if necessary, prove in the proceedings for protection against dismissal that even with the help of a bEM, no milder means than termination of the employment relationship could have been identified or developed. Employers are often unable to meet these high requirements. The consequence: The termination is held disproportionate and therefore invalid.
Decision of the BAG - no "minimum storage life“ for one year
The law stipulates that a bEM should always be carried out if the employee is unfit for work "within a year" for more than six weeks without interruption or repeatedly.
In this context, it has been disputed up to now whether it is sufficient for the employer to carry out a bEM only once within a period of one year, even if the employee is again incapacitated for work for six weeks.
The BAG's answer - which is not very pleasing for employers - is that it is not sufficient in such a case to carry out the bEM once within a year. If the employee is again continuously or repeatedly incapacitated for work for more than six weeks within one year after the conclusion of a bEM, the employer must again conduct a bEM, even if another year has not yet passed since the conclusion of the last bEM.
But: No further bEM during the ongoing bEM
However, the BAG also clarified: If additional periods of incapacity for work of more than six weeks are added during an ongoing bEM process that has not yet been completed, the employer is not obligated to initiate another bEM in parallel. Rather, it is sufficient for the employer to include the new periods of incapacity for work and possible changes with regard to the causes of the illness or the operational conditions in the ongoing bEM process.
Completion of the bEM as day "zero“
Now the attentive reader is confronted with the follow-up question: When is a bEM process completed, i.e. when is the new six-week period set in motion? For this the BAG gave only a hint, which expressly does not claim to be a comprehensive definition: The bEM is terminated in any case when employer and employee agree that the bEM as an "open-ended search process" is terminated or should not be continued or the employee unilaterally no longer agrees to continue with the bEM process. A unilateral conclusion by the employer, on the other hand, should not be possible. A bEM can only be properly concluded when the employee and all other parties involved (e.g. works council, representative body for the severely disabled, etc.) can no longer point to any further approaches for successful implementation. If necessary, a specific deadline must be set for them to do so.
Conclusion
From this decision follows for employers:
If the employee is incapacitated for work for more than six weeks after completion of a bEM, he or she should in any case be offered another company bEM process and it should be duly completed before a notice of termination due to illness is issued. This at least increases the chances of the effectiveness of a later notice of termination due to illness, even though the other requirements for the effectiveness of such a notice of termination are known to be extremely high.
Since the BAG expressly points out in its decision that its statements on the conclusion of the bEM do not claim completeness, it remains to be seen to what extent case law will concretize these in the future. In any case, a unilateral statement by the employer that it considers the bEM to be completed is not sufficient for a proper conclusion. The employer should at least set the employee and all other persons involved in the bEM (e.g. the works council, the representative of the severely disabled, etc.) a deadline in writing for a final statement.