Before issuing notice of dismissal on account of illness, an employer ought to assess whether the relevant employee”s inability to work can be overcome with the help of a company reintegration management program.
The employer ought to explore whether the employee”s incapacity to work can be overcome by means of what is referred to in German as a “betriebliches Eingliederungsmanagement”, or “bEM” for short; i.e. a company reintegration management program. We at the commercial law firm GRP Rainer Rechtsanwälte note that this option needs to be considered if the employee has been continuously sick or repeatedly unable to work for longer than six weeks within a period of one year. If the employer deems what is ultimately a mandatory bEM to be pointless then it has to be able to explain why this is the case, as demonstrated by a judgment of the Landesarbeitsgericht (LAG) Rheinland-Pfalz [Regional Labour Court of Rhineland-Palatinate] from January 10, 2017 (Az.: 8 Sa 359/16). According to the ruling, the pointlessness of a bEM is not established solely by the fact that the employee himself considers his illness(es) to be fateful.
In the instant case, the employee had fallen ill to the point where he was unable to work again and again for extended periods of time over several years. Finally, a discussion with the employer took place as part of the bEM, during which the employee stated that his periods of illness had been fateful. The employee subsequently fell ill again for a prolonged period of time, following which his employer issued him with notice of dismissal due to illness. There was no continuation of the company reintegration management program. The employer viewed a bEM as pointless in light of the employee”s statement that his periods of illness had been fateful.
The employee”s action for wrongful dismissal was successful. The LAG held that given the fact that the bEM had not been implemented, notice of dismissal was disproportionate and therefore not socially justified. The Court ruled that while implementing a company reintegration management program is not a formal condition for notice of dismissal to be effective it puts the principle of proportionality in concrete terms, since the bEM could have led to a less severe measure than notice of dismissal being identified and pursued. The LAG went on to say that only if a bEM had not yielded any positive results would it have been possible to forgo implementation. To this end, the employer would have to provide a comprehensive and detailed explanation concerning the bEM”s pointlessness. The Court concluded that the employer had failed to do so here and the notice of dismissal was thus ineffective.
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