Occupational rehabilitation management program and dismissal due to illness
In the case of sick employees, employers ought to closely explore the possibility of an occupational rehabilitation management program. Otherwise, dismissal due to illness may be invalid.
Employers are obliged to offer employees who are continuously or repeatedly sick for a period of six weeks within the space of a year what is referred to as a „betriebliches Eingliederungsmanagement“ (BEM) [occupational rehabilitation management program]. We at the law firm GRP Rainer Rechtsanwälte note that the employer is supposed to look into how the employee“s unfitness for work can be overcome or how to prevent him from becoming incapable of working again. If the employer considers a BEM to be pointless, it must be able to justify this in detail before issuing notice of dismissal due to illness. Otherwise, as is clear from a judgment of the Landesarbeitsgericht (LAG) Rheinland-Pfalz [Regional Labour Court of Rhineland-Palatinate] from January 10, 2017, the dismissal may be invalid (Az.: 8 Sa 359/16).
In the case in question, the employee had worked at the company for many years as a machine operator. Over several consecutive years, the employee was absent from work for several weeks due to illness. The employer subsequently had a discussion with the employee in advance of the occupational rehabilitation management program. According to the company, the employee stated during the discussion that his illnesses had been „fateful“ and there was nothing the employer could do to prevent his unfitness for work. After the employee later fell ill and became unfit for work once again, the employer issued notice of dismissal due to illness, which the employee then resisted. It was argued that there had been no social justification for the dismissal. Moreover, the employer ought to have carried out a BEM before issuing notice of dismissal.
The LAG Rheinland-Pfalz granted the action for wrongful dismissal, ruling that the dismissal had not be socially justified and was therefore invalid. The Court went on to say that dismissal due to illness is socially justified if there is a negative prognosis in relation to the probable duration of the period of unfitness for work and this results in a significant detrimental effect to the company“s interests that places a burden on the employer which is no longer tolerable. The Court held that the employer had not sufficiently demonstrated that this was the case, pointing out that the latter had failed to carry out a BEM as required by law and yet also failed to sufficiently make the case for there having been no other possible milder measures than dismissal. The LAG concluded that this rendered the dismissal disproportionate. If the employer considered the BEM to be pointless, it needed to explain why more recent illnesses could not have been prevented by this.
Employers can turn to lawyers who are versed in the field of employment law for advice on all legal issues pertaining to the workplace.
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