Company integration management (hereinafter referred to as “bEM”) plays a significant role in employment law (not company!) practice, particularly in connection with dismissals due to illness. In the worst case, any mistake can lead to the termination being ineffective.

1. IMPORTANCE OF CORPORATE INTEGRATION MANAGEMENT IN RELATION TO THE EFFECTIVENESS OF TERMINATION

167 Paragraph 2 SGB IX requires employers to offer a BEM to employees who have been unable to work for more than six weeks in the last 12 months. The offer or even the implementation of company integration management is not a formal requirement for a termination to be effective. However, the requirements set by the Federal Labor Court regarding the burden of presentation and proof for employers are so high that at least attempting to carry out a BEM is strongly recommended.

In addition, it is strongly recommended that the bEM be carried out shortly before the termination is given. Ideally, there should be no more than a month between the last BEM and the announcement of termination.

This means that employers who are considering giving notice of dismissal due to illness should have at least attempted to carry out a proper BEM before giving notice of termination.

2. WHAT SHOULD BE CONSIDERED WHEN IMPLEMENTING CORPORATE INCLUSION MANAGEMENT?

When carrying out the bEM, not only the legal requirements from § 167 Paragraph 2 SGB IX but also the strict requirements of employee data protection.

The law initially stipulates that company integration management may only be carried out with the consent of the employee concerned. The employee must therefore be asked before the start of the bEM whether he or she even agrees. This usually happens in the invitation letter. Since the law also requires that the employee be informed about the goals and data processing, the invitation letter is also a useful source of information here. This means that the employer can also document that it has complied with the information obligation required by law.

It should be noted that a comprehensive letter of invitation and information lays the foundation for legally secure company integration management.

3. PARTICIPATION OF THE WORKS COUNCIL

Many parts of a process for carrying out operational integration management are subject to enforceable co-determination. For example, procedural questions are usually after Section 87 Paragraph 1 No. 1 BetrVG (organizational regulations). The use and processing of health data is often subject to co-determination Section 87 Paragraph 1 No. 6 BetrVG (technical monitoring device). Finally, the works council can have co-determination Section 87 Paragraph 1 No. 7 BetrVG be triggered (health protection). Numerous areas of regulation in “typical” company agreements on company integration management, however, are based solely on voluntary co-determination. In practice, most company agreements regulate both areas that are subject to compulsory co-determination and those that are only voluntarily co-determined. The distinction is important for the question of enforceability via a conciliation board.

4. PATTERN

Below you will find a sample invitation letter and the corresponding reply letter from the employee. Please note that the template does not replace legal advice in individual cases. 

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Sample invitation letter for company integration management

Invitation to carry out company integration management (Section 167 Paragraph 2 SGB IX)

Dear Mr/Mrs xxx,

Within the last 12 months you were unable to work for a total of more than six weeks. You therefore belong to the group of people for whom company integration management (bEM) is provided for in Section 167 Paragraph 2 Sentence 3 SGB IX.

The aim of the bEM is to clarify, with the involvement of all those involved, the options as to how your inability to work can be overcome as far as possible and which services or assistance can be used to prevent renewed inability to work and to maintain your employment relationship. In particular, the bEM is intended to determine which health restrictions caused the previous downtimes and to find out whether and, if so, what options exist to reduce them in the future through certain changes in order to avoid termination . So it's about the basics of your continued employment.

The bEM is open-ended, so you are welcome to contribute your own suggestions to the process at any time. Carrying out the bEM is also voluntary for you and dependent on your consent. You can revoke your consent at any time, in which case the bEM will not be carried out or continued. In addition to you, a representative of the employer takes part in the bEM. A works council member is also expected to participate, provided you do not object to participation.

During the bEM discussion and during the subsequent implementation of integration measures as part of an individual action plan, the following personal data will be collected and used by the employer if necessary:

− Personnel data, in particular: names, date of birth, length of employment, severe disability/equality, marital status, etc.,

− Data on absences, in particular: number and distribution of days of incapacity for work in the last twelve months and in previous periods, accidents at work,

− Health data, in particular: existing performance potential, performance restrictions due to health or severe disability, state of health, cures, medical treatments, diagnoses, causes of illness, medical certificates,

− Activity data: in particular the activity carried out, workplace and activity analyses, risk assessments, occupational safety data, professional qualifications,

− Expiry dates: in particular the processes and results of bEM procedures, work trials and measures for gradual reintegration as well as other workplace-related measures, internal implementation, adjustments to the workplace or working conditions.

The data will be treated confidentially and in compliance with data protection regulations and will only be collected and used for the following purposes:

− To provide advice on how the inability to work can be overcome as best as possible and what services or assistance can be used to prevent further inability to work.

− To determine what workplace-related measures can be taken, to summarize these measures in an action plan and to implement this action plan.

− To determine to what extent the action plan was implemented and to what extent the bEM was successful.

Only with your prior consent will third parties (e.g. rehabilitation providers) be involved in the bEM, to whom your data will in this case be passed on to the extent that this is necessary for the fulfillment of the tasks of these third parties.

The legal basis for the processing of your personal data within the framework of the bEM is Section 26 Paragraph 1, 3 in conjunction with Section 167 Paragraph 2 SGB IX.

The data is usually deleted within six months of completion of the bEM, unless further processing is necessary for the purposes of the employment relationship or the employer is obliged or entitled to store it for a longer period due to legal regulations. You have a right to information about the personal data stored by the employer and, if the relevant legal requirements are met, a right to the provision, correction and deletion of the data and to restriction of processing. You can also contact the relevant supervisory authority with complaints.

Which additional data needs to be collected during a bEM depends on the individual case. However, you will be able to determine again for each individual phase of the bEM which data collection and use you agree to and which you do not agree to.

We will store all health data collected in connection with the bEM exclusively in a separate file for the personnel file and also store it electronically. They can only be viewed by those involved in the bEM process. These people are obliged to maintain data secrecy. In addition, the works council has legal powers to inspect.

To hold an initial bEM discussion, we suggest the following three appointments, each in [description of location]:

• [Date / time]
• [Date / time]
• [Date / time]

If you would like to have a bEM discussion but are unable to attend any of the appointments offered, please provide alternative suggestions in the answer fields contained in this letter.

You are of course not obliged to provide information about the cause of your inability to work or any related medical statements during our conversation.

Finally, I would like to point out that so far we have no evidence of an existing severe disability or equality. We are therefore currently assuming that we will not have to involve the severely disabled representatives we have formed and the local integration office. If this assumption is not correct, please let me know and provide the relevant documents. Please also let us know whether, in your opinion, benefits for participation or accompanying assistance in working life are eligible in accordance with Section 167 Paragraph 2 Sentence 4 and Section 49 Paragraph 1 SGB IX. In this case, provided you agree, we would involve the Integration Office in the appointments. According to Section 49 Para. 1 SGB IX, the necessary services are provided for participation in working life in order to maintain, improve, establish or restore the earning capacity of people with disabilities or people at risk of disability in accordance with their performance and, if possible, to ensure their participation in working life in the long term to secure.

Please let us know by filling out and signing the reply fields in the attached reply letter by

[Date 14 days after expected receipt of the letter]

whether you want to take part in the bEM and which dates are suitable for you. We are available to answer any questions at any time.

With kind regards,

_____________________________________ _____________________________

Place, date, signature

Reply letter beM

__________________________________________________________________________

[Name, personnel number]

I have received the invitation letter to carry out a company integration management (bEM).

Please tick each:

1. I am responsible for carrying out the bEM

Oh, agreed

Oh disagree.

2. The participation of a representative of the works council

Oh, I agree

Oh, I don't agree.

3. The interview date(s) on

O [date, time]

O [date, time]

O [date, time]

is/are suitable for me.

or

O none of the interview dates mentioned are suitable for me, so I suggest ………………….at……………..pm as an alternative.

4. I would like to suggest other people involved.

Oh no

Oh yes, namely the following people (please state name and function/type of personal relationship):

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

________________________ ________________________

Place, date, signature