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.
