In general, where employees are unfit for work for more than six consecutive weeks or on an aggregate basis within a year due to health reasons, it is vital that the employer conduct a return to work assessment known in Germany as ‘Betriebliches Eingliederungsmanagement’ or ‘BEM’ (a review of the workplace and how it may be impacting on the individual worker not to be confused with the German process of ‘Wiedereingliederung’ or reintegration).
This is an often overlooked process when addressing recurrent absence, although when utilised early on it can benefit several aspects of the business. Overall, by ensuring that employees with chronic illness or health disorders are not placed in situations that aggravate their conditions, employers reduce the chance of employees falling ill for long periods and thereby create a more holistic health management approach.
However, in some cases it is not feasible to continue employing someone who has been away from work due to prolonged illness, and it is in these cases where having conducted a return to work assessment can greatly assist employers in the process of dismissal.
Requirement in dismissal
In May 2015, the Federal Labour Court of Germany confirmed the position that an employer has to ensure they can prove that they have met the strict requirements necessary for a dismissal due to illness for it to be justified.
Conducting a return to work assessment is essential in substantiating the claim that dismissal is the proportionate measure in a particular situation. Even though it is not a mandatory condition for the validity of a dismissal, should this process not have been conducted, the employer carries the burden of proof to demonstrate that there is no alternative possibility of employing the sick employee in the company that would appropriately accommodate their health requirements.
Implementing a return to work assessment
Before an employee is dismissed because they are unfit for work due to health reasons, the employer should offer to conduct a return to work assessment regardless of whether they believe the employee is fit to work or not. This process can also be legally required by employees and their representatives.
Although current law does not set out specific requirements in relation to how return to work assessments are conducted, the following is necessary:
- The employee must be correctly informed about the goals and objectives of the process and about the nature and scope of any data collected for that purpose.
- The employee must agree to the process before it commences.
- The process must involve the responsible employee representative and, if the individual is severely disabled, the severely disabled employees’ representative.
While this allows the employer some discretion over how they operate the process, it also introduces risks as the employee may claim that the employer did not fully investigate or provide the necessary information prior to commencing this process.
It is advisable to invite the employee to participate in the return to work assessment in writing. This letter should contain all the necessary content and information to allow the employee to decide whether they consent to participate in the return to work assessment or not. If the employee does not agree, this should also be explicitly documented in case of a subsequent legal claim disputing the validity of any dismissal.
Decision of Federal Labour Court dated 13 May 2015, Az.: 2 AZR 565/14
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