When it comes to long-term sick employees, there are generally two problem areas for employers:
(1) The question of employment that is appropriate for suffering if the employee wants to return after recovering from illness.
(2) The legally secure implementation of operational integration management (BEM). The following article is intended to briefly shed light on both areas, although data protection considerations should be omitted.
1. THE SUFFERING WORKPLACE
The suffering-friendly workplace is a term that is used in... Employment Law appears very frequently. It is therefore somewhat surprising that it does not appear in the law. There are indications in the law on severely disabled people (§ 164 Paragraph 4 Nos. 4 and 5 SGB IX). According to the case law of Federal Labor Court This may result in the employee being entitled to a job appropriate to the disability. There may even be a claim for a contract change and alternative employment if the previous employment contract does not cover the employment opportunity.
However, one looks in vain in the law outside of disability law. Here, too, the employee may have a right to employment in a job that corresponds to his performance and knowledge (see Section 241 Paragraph 2 BGB).
SCOPE OF CLAIM?
Both after § 164 Paragraph 4 Sentence 1 No. 4 SGB IX as well as after § 241 para. 2 BGB The employer is obliged to redesign the workplace in a way that is compatible with suffering, if necessary also by adapting the contract and assigning the employee another free job that is suitable for suffering. However, the employer is not obliged to create a workplace that is compatible with suffering. It is reasonable for the employer to assign another job if there are no operational reasons, which may also include economic considerations, or the duty of consideration towards other employees.
DOES THE EMPLOYER HAVE TO CREATE A JOB VACANCY?
In principle, due to the right to employment that is commensurate with suffering, the employer is also obliged to free up a job that is commensurate with suffering by exercising its right to direct. However, it has not yet been conclusively clarified how far the employer has to go in the event of resistance from the affected employee and/or the works council. An obligation to carry out a consent replacement procedure or to terminate the target job cannot be required. However, the employer must make efforts to the job holder and the works council and also prove these efforts in court.
2. CORPORATE INCLUSION MANAGEMENT
The operational integration management (see Section 167 Paragraph 2 SGB IX) initially had a shadowy existence after its introduction on May 1.5.2004, XNUMX, but today - if one wants to transfer the case law of the Federal Labor Court to practice in a legally secure manner - it must be viewed as a prerequisite for the effectiveness of a dismissal due to illness.
In other words: Termination without prior BEM is ineffective!
§ 167 Paragraph 2 SGB IX According to the justification for the law, the aim is to prevent any risk to the employment relationship for health reasons as early as possible. The employer's obligation to carry out operational integration management applies to all employees, especially to employees who are not severely disabled.
A BEM must be carried out if an employee is unable to work for more than 6 weeks continuously or repeatedly within a year (does not have to be the calendar year). As soon as this time limit is exceeded, the employer must contact the employee and offer to carry out a BEM. The employee is entitled to have a BEM carried out if the legal requirements are met.
WHO SHOULD BE INVOLVED?
The employer should think about which parties he needs to involve in advance of implementing company integration management. However, it should be noted that participation is only possible with the consent of the employee concerned (this also applies to the works council). Who needs to be involved depends on the employer's findings in the individual case. Those involved can be: doctors, Federal Employment Agency, integration services, integration offices, social insurance providers, addiction help, etc.). The employer must inform the employee of the possibility of involving these parties in the invitation letter to the BEM.
PERFORMANCE OF THE BEM DURING EXISTING INABILITY TO WORK?
As long as the type of illness does not actually prevent the employee from appearing at the company to conduct the BEM interview, there is no objective reason for a refusal. Because this conversation has nothing to do with the contractually agreed work, for which only a certificate of incapacity for work was issued.
RIGHT OF CO-DETERMINATION OF THE WORKS COUNCIL?
The works council only has a very limited right to enforce co-determination in relation to company integration management. In particular, if the employer wants to introduce a structured, formal process regarding the BEM, a right of co-determination may be given.
CONCLUSION
Even if many points are still unclear with regard to a workplace that is suitable for suffering, the employer is always well advised to try to find such a workplace and to document this accordingly. In most cases, errors in operational integration management lead to the termination being ineffective. Therefore, both the preparation and implementation should be treated with the greatest care.
