A BEM invitation dismissal cannot be secured by a mere invitation to Company Integration Management (BEM). Many employees believe that the employer only needs to issue a BEM invitation to secure a dismissal due to illness, but that is a misconception: the invitation is only the beginning of a process that the employer must conduct in earnest to legally justify the dismissal.
In this article, you will learn why a mere BEM invitation is not enough, what requirements apply to a proper BEM, and how to respond correctly as an employee facing a dismissal due to illness.
What Is a BEM and When Are You Entitled to It?
Company Integration Management (BEM) is a statutory procedure that employers must offer when an employee has been unfit for work for more than six weeks within a year. The goal is to work together with the affected employee to find ways to overcome the incapacity for work and prevent future occurrences. The BEM is regulated in Section 167(2) of the German Social Code Book IX (SGB IX).
There is no entitlement to BEM in the sense of an enforceable right, but the employer is obliged to offer the procedure. If the employee declines, the employer may not conduct the BEM. Participation is voluntary. However, a refusal can later have negative consequences in an unfair dismissal claim if the employee argues that no BEM took place.
Important: The BEM is relevant not only for long-term illnesses but also for frequent short-term illnesses. The decisive factor is exceeding the six-week threshold within the last twelve months. The employer must issue the BEM invitation before issuing a dismissal due to illness. Otherwise, the dismissal may be invalid.
Why a BEM Invitation Dismissal Requires More Than an Invitation
A mere invitation to BEM is not sufficient to legally safeguard a subsequent dismissal due to illness. The employer must actually carry out the BEM and pursue it in good faith. This means discussing possible measures with the employee, examining them, and documenting the process. A mere formality — sending an invitation without substantive effort — is not enough.
The Federal Labor Court has clarified in several decisions that a proper BEM is a mandatory prerequisite for a dismissal due to illness. If it is missing or flawed, the dismissal is generally invalid. However, there are exceptions, for example if the employee refuses the BEM or if a proper BEM would not have revealed any alternatives.
Practical example: An employee has been on sick leave for months. The employer sends a BEM invitation, but no meeting ever takes place. Later, the employer dismisses the employee due to the illness. The labor court will very likely consider this dismissal invalid because the BEM was not conducted. The invitation alone is worthless if no action follows.
What a Proper BEM Invitation Must Contain
For a BEM invitation to meet the requirements, it should include certain elements. Although there is no statutory formal requirement, the invitation should be in writing and cover the following points:
- Reference to the statutory right to BEM under Section 167 SGB IX.
- Information that participation is voluntary and carries no disadvantages.
- Request for a response within a reasonable deadline.
- Reference to the option of involving a trusted person or the works council.
- Information on data protection and the duty of confidentiality of those involved.
If one of these points is missing, the invitation may be considered improper. However, the overall circumstances are decisive in a dispute. What matters is that the employer is genuinely willing to conduct the procedure.
Employees should not reject a BEM invitation hastily. Even though participation is voluntary, a refusal can later be interpreted in court as a lack of cooperation. It may be useful to attend the meeting and contribute your own proposals to preserve your ability to work.
Dismissal Due to Illness: Additional Requirements That Must Be Met
Even if the BEM has been conducted properly, a dismissal due to illness is only valid under certain conditions. The Federal Labor Court requires three elements:
- A negative health prognosis: It must be expected that the employee will not be able to work, or only to a limited extent, in the future.
- A significant impairment of operational interests: The illness must cause disruptions in the operation, for example through high absenteeism or financial burdens.
- A balancing of interests: The employer must examine whether milder means, such as a transfer or a notice of change, are possible.
The BEM is embedded in this assessment: it serves to identify possibilities for avoiding dismissal. If the BEM shows that the employee can continue working with certain adjustments, a dismissal is generally disproportionate.
Employees should therefore examine carefully whether all requirements are met when faced with a dismissal due to illness. Often, dismissals are issued without a sufficient prognosis or without a proper BEM. In such cases, an unfair dismissal claim is worthwhile.
More on the general requirements of a dismissal due to illness read our guide.
What Happens If the BEM Was Conducted Incorrectly?
If the employer fails to conduct the BEM or does so inadequately, this generally means that a dismissal based on it is invalid. The labor court will set aside the dismissal if the employer cannot prove that a proper BEM took place or that one was exceptionally unnecessary.
However, there are pitfalls: the employee must invoke the error and demonstrate that the BEM was not proper. This includes showing that the employee was willing to participate in the BEM. Anyone who refuses the BEM without good reason cannot later rely on its absence.
An improper BEM invitation can lead to the invalidity of the dismissal. Even if the employer holds a meeting but offers no concrete measures or ignores the employee’s proposals, the BEM has not been conducted properly.
In practice, employees should document how the BEM proceeded. Record which meetings took place, which proposals were made, and how the employer responded. These records can be decisive in court.
Severance in Case of Dismissal Due to Illness: Your Room for Negotiation
A severance payment is not automatically due in a dismissal due to illness. Unlike a dismissal for operational reasons, there is no statutory severance under Section 1a KSchG when the employer bases the dismissal on illness. However, in practice, employers often offer a severance as part of a settlement to avoid the risk of lengthy proceedings.
If you file an unfair dismissal claim, you have the chance to negotiate a severance. The amount depends on the circumstances of the individual case, such as length of service, age, and the likelihood that the dismissal is invalid. As a rule of thumb, half to one month’s salary per year of service is often cited — but this is only a guideline, not a guarantee.
If you are unsure whether a severance is possible, you should seek advice from a specialist employment lawyer. A specialist can assess your chances and develop a strategy. Note: A claim must be filed within three weeks of receiving the dismissal. If you miss this deadline, the dismissal is generally valid.
Further information on severance can be found in our Severance Guide.
Deadlines and Next Steps: How to Respond Correctly to the Dismissal
If you have received a dismissal due to illness, swift action is required. The most important deadline is the three-week period for filing an unfair dismissal claim. This period begins upon receipt of the dismissal and ends on the same day of the third week. If you miss this deadline, the dismissal is considered valid even if it was substantively unfounded.
First, check whether you were unfit for work for more than six weeks within the last twelve months. If so, the employer should have offered a BEM. If this is missing, it is a strong argument for the invalidity of the dismissal.
Further steps:
- Obtain the dismissal in writing and examine the reasoning.
- Document all relevant circumstances, especially regarding the BEM.
- Consult a specialist employment lawyer as soon as possible.
- File an unfair dismissal claim within the deadline if you wish to challenge the dismissal.
A lawyer can also assess whether a severance is an option and how to negotiate it. If you are concerned about litigation costs, litigation funding can help — as offered by RechtStark, for example. We assess whether we can finance your proceedings so that you bear no cost risk.
More on the process of an unfair dismissal claim can be found in our Unfair Dismissal Claim Guide.
Conclusion: A proper BEM is crucial, but a mere invitation is not enough. Only if the BEM is actually conducted and the further requirements for a dismissal due to illness are met can the dismissal be valid. As an employee, you should know your rights and seek legal advice in case of doubt.
Note: This article is for general information purposes only and does not replace individual legal advice. For a free initial assessment of whether litigation funding may be an option for your case, you can contact RechtStark.