Dismissal on Health Grounds: Why a Declined Integration Process Does Not Excuse the Second Attempt
- Jul 27
- 3 min read
An employer invited a frequently ill employee to a workplace integration process (betriebliches Eingliederungsmanagement, bEM) five times over a good two years. The employee did not respond to the next offer. Eight months later the employer dismissed him on health grounds and lost at all three levels of the labour courts (BAG, judgment of 7 May 2026, case no. 2 AZR 184/25). The decisive question was how often an employer has to follow up.
1. The Case: Five Invitations to a bEM
The employee had worked since May 2015 in a business with more than ten full-time staff. In each of the three years before the dismissal he was absent for more than six weeks, in each case with continued pay during sickness (Entgeltfortzahlung). Between January 2020 and August 2022 the employer offered him a bEM five times. He accepted the offer of August 2022, and a meeting took place.
He no longer responded to a further offer made in April 2023. In October 2023 the employer made another attempt, this time by registered letter delivered into the letterbox (Einwurf-Einschreiben). The employee disputed ever having received that letter, and the employer was unable to prove delivery. In December 2023 it gave notice.
2. The Renewed Attempt: A Refusal Is Not Binding Indefinitely
Under Section 167(2) sentence 1 of Book IX of the German Social Code (SGB IX), the employer must take the initiative where an employee is absent for more than six weeks within a year. Where the employee's consent is not forthcoming, it has so far been unclear whether and when the next invitation to a bEM has to follow.
The Federal Labour Court (Bundesarbeitsgericht) draws the line narrowly: if consent is withheld and the employee is subsequently ill again for more than six weeks, either continuously or in several periods, the employer must ask a second time. Whether another year has passed since the withheld consent is irrelevant.
The senate bases this on practical reality: the very fact of additional absences may have changed the employee's earlier reluctance. A simple enquiry is neither an unreasonable administrative burden nor unsettling for the employee. On the contrary, it brings home to him that the incapacity for work has not yet been overcome.
3. The Reversed Burden of Proof
A bEM is not in itself a precondition for a dismissal on health grounds. Section 167(2) SGB IX does, however, give concrete shape to the principle of proportionality, which the employer must observe when giving notice. Dismissal may only ever be the last resort in cases of extensive or frequent sickness absence. Milder measures, such as redesigning the workplace, may in some cases only come to light through a bEM.
That is where the real burden on the employer side lies: anyone who should have carried out a bEM and failed to do so bears the full burden of pleading and proof that the bEM would not have prevented further absences anyway and would not have saved the employment relationship. What has to be proven, in other words, is the ineffectiveness of a conversation that never took place. In practice this is close to impossible, so that a bEM must effectively be carried out, if necessary repeatedly, before any notice of dismissal is given.
In the case decided, the employer failed one step earlier. Because it could not establish delivery of the October 2023 invitation, the second attempt counted as never having been made. Five earlier invitations were of no help to it.
Unsure whether a bEM is required in your case?
In dismissals on health grounds, much is decided long before the notice of termination is drafted. Whether a bEM was offered, and whether that can be evidenced, may determine the outcome of the entire proceedings.
If you are an employer preparing a separation on health grounds, or an employee who has received such a dismissal, I offer you a short, free initial assessment. In that conversation, we will clarify how your situation should be assessed and which next steps make sense.
