Im Lawyer ranking of the Handelsblatt 2022 will Dr. Eva Graune, Mr. Markus Tönjann and Mr. Jens Niehl once again listed as “Best Lawyers” in the field of labor law.
Month: June 2022
BAG: Company integration management is not enough
Dismissal due to illness is possible. However, the requirements for dismissal due to illness are very high. It is obligatory for the employer to explore alternatives to dismissal in advance. The employment relationship should only be terminated if no reasonable employment opportunity is available. However, the Federal Labor Court (BAG) has now decided that further operational integration management may have to be offered (BAG, judgment of November 18.11.2021, 2 - 138 AZR 21/XNUMX). This is the case if the employee was absent due to illness for more than six weeks after the last offer.
General information on operational integration management
If the employer wants to give notice because of frequent or long-term illness, he has to meet high requirements. Above all, it is important that he offers a so-called operational integration management (bEM). This is necessary as soon as the employee has been unable to work for more than six weeks (in a row or repeatedly) within a year.
As part of the bEM, those involved discuss how the employee can continue to be employed in a manner appropriate to their suffering in order to reduce or avoid absenteeism. Depending on the illness, a reduction in working hours or a transfer may be considered.
If the employer does not offer the bEM, a later dismissal is not illegal per se. However, the employer then has to prove in court that a bEM would not have provided any opportunities to continue to employ the employee in a meaningful and suffering manner. The hurdle is very high. Against this background, it is often said that the bEM is in fact an almost mandatory requirement for dismissal due to illness.
Employee falls ill again after bEM
The plaintiff took action against his dismissal, which was given to him because of illness-related absences. In the years 2017 to 2019 he was absent from a total of 204 working days. On March 5, 2019, the employer initiated a conversation with him to find ways to reintegrate him into the company (bEM). However, the employee was again unable to work for 79 days afterwards. The employer then resigned. There was less than a year between the bEM interview and the termination.
The plaintiff considered the dismissal invalid. He argued that the employer should have carried out another bEM. The first is no longer sufficient because of the renewed absences afterwards.
Federal Labor Court: second bEM was necessary
The BAG agreed with the plaintiff. In fact, another bEM should be offered if there has been an absence of more than six weeks since the last bEM. This also applies if not a year has passed since the last bEM.
The wording of the relevant § 167 Para. 2 S. 1 SGB IX already speaks for this. The sentence "If employees are uninterruptedly or repeatedly unable to work within a year for more than six weeks" does not determine a minimum interval between two bEM discussions.
The purpose of the law also speaks for another bEM. The threshold of six weeks of absence was chosen because after this period dismissal due to illness is often justified. In order to prevent dismissal, integration options should be sought as soon as possible. Waiting until a year has passed makes no sense.
The defendant did not explain that a new bEM would not have produced a positive result because the previous one had not produced such a result.
The defendant also did not sufficiently explain that the implementation of a (further) bEM could not have shown any positive results. The employer bears the burden of explanation and proof of the objective uselessness. To do this, he had to explain comprehensively and specifically why it was not possible for the employee to continue working in the job he had previously, nor to adapt and change it to suit his suffering, and why the employee could not have been employed in a different job with a different job.
When is the bEM completed?
The BAG's decision leads to an important follow-up question: When is a bEM completed? The point in time is important because employers may oblige subsequent absences to a new bEM. The judges of the BAG give the following information:
- In any case, a bEM is concluded when the employer and employee agree on it.
- The same applies if the employee rejects the bEM or does not agree to its further implementation.
- Unilateral terminations by the employer are not possible. If this stops its efforts, the bEM will only come to an end if none of the other parties involved name any serious approaches for preventive measures. The employer can give them a reasonable period of time to do this.
Conclusion
The hurdles for dismissal due to illness remain high. Even if the employer has already offered a bEM, he may have to take the same initiative again. Employers are therefore advised to give notice of termination quickly after an unproductive bEM. For employees, the following applies once again: even well-prepared notices of termination are often vulnerable.
Federal Labor Court decision of May 19.05.2022, XNUMX on the notification of mass redundancies: "Should not be a must"
If the employer dismisses numerous employees at once, he must first inform the employment agency. The law stipulates certain information that must be included in this notice of collective redundancy. Other information "should" only be included.
The Federal Labor Court has now decided that this "target information" is not mandatory. If the employer omits them, the terminations do not become ineffective. The lower court saw it differently.
That's what the case was about
An employee who was dismissed for operational reasons in the course of downsizing had filed a complaint. The company terminated a total of 2019 employment contracts within a month in 17. With this number, it exceeded the threshold of § 17 Para. 1 Dismissal Protection Act (KSchG).
If there is a large number of redundancies, the company concerned must inform the employment agency about the forthcoming layoffs. This must be done before the dismissals are announced. If there is no notification of mass redundancies or if it is incorrect, all terminations are ineffective.
The plaintiff had also referred to this and asserted that the notification of collective redundancies was incorrect. Finally, the specification of the
- age,
- gender,
- Professional
- and the nationality of the workers to be made redundant.
The law states that this information only "should" be given - and not "must". However, it follows from European law that all information is mandatory. German law must also be based on higher-ranking European law.
The competent labor court and state labor court have already agreed with the employee. Spicy about it: Even the employment agency has so far assumed that the information mentioned is not mandatory. Accordingly, the competent authority consistently did not object to the collective redundancy notice in this case either.
This is what the Federal Labor Court ruled
The Federal Labor Court did not follow the two previous instances. The reasons for the decision are not yet available. The underlying reasons for the argument can be found in the press release.
It states that the will of the legislature is clear. The judges inferred this view from the wording, which actually speaks against a mandatory character with the term "should". There is also no other assessment to be found in European law. The Court of Justice of the European Union has already clarified that the relevant directive does not necessarily require the indication of age etc.
Conclusion
The surprise was great when the first two instances had declared the "target" information to be mandatory. As it stands, the Federal Labor Court is burying this legal opinion for practical purposes. Whether everything actually stays the same - the notification of collective redundancies is also effective without target information - depends on the justification for the decision. This is to be expected in a few weeks.
By the way: Recently, numerous dismissals by the airline AirBerlin failed because the employer had sent the mass redundancy notice to an incompetent employment agency. The case shows how carefully employers should proceed here and what defense options employees have.
Background: What are the special features of mass redundancies?
There is talk of mass redundancies if so many jobs are cut within 30 days that the relevant threshold in Section 17 (1) KSchG is exceeded.
Example: In companies with more than 20 and less than 60 employees, the threshold is exceeded after five layoffs.
Caution: Termination agreements initiated by the employer may also be understood as dismissal in this sense.
Of course, the usual protection against dismissal also applies in the context of mass redundancies. However, employers must also meet these requirements in particular:
- The works council must be informed in advance in accordance with Section 17 (2) KSchG.
- As already explained in detail, the competent employment agency must be notified of a mass redundancy before the notice of termination is given.
- This must always be supplemented by a statement from the works council and the notification that was made to the works council in accordance with Section 17 (2) KSchG (see above).
- As a rule, the employer is also obliged to negotiate with the works council about a social plan and a reconciliation of interests. This obligation applies regardless of the above threshold, but often coincides with exceeding it.