The Structured 4-Step BEM Rejection Protocol under § 167 Para. 2 SGB IX (German law)
An employee declines BEM. Briefly, sometimes curtly, often without giving a reason. HR nods — and moves on. Three years later, in a wrongful-termination dispute, the labor court asks: 'Where is the proof that BEM was offered and that the rejection was documented?'
If the answer is 'the HR staffer at the time remembers it,' the termination is at risk.
Why is the documentation more critical than the conversation itself?
The Federal Labor Court (BAG) has clarified: if the employer has not offered a proper BEM, an illness-related termination is not automatically invalid – but the employer bears an extended burden of presentation and proof (BAG, judgment of 20 November 2014 – 2 AZR 755/13). The employer must be able to prove that BEM was offered. Written documents with a date that can be verified later carry the most weight. What this means for a later dismissal on grounds of illness is explained in the guide Dismissal for illness without BEM.
Which four steps belong in the protocol?
**Step 1 — Archive proof of delivery:** The delivery receipt of the registered mail with confirmation of receipt goes straight into the BEM file. Never use email as the invitation channel — deliverability cannot be proven.
**Step 2 — Document the deadline:** The exact date on which the 14-day response deadline expires is noted. If there's no response: note 'No response by deadline [date].'
**Step 3 — Obtain written confirmation:** If the employee actively declines, ask for a brief signature: 'I decline the offer of Workplace Reintegration Management (BEM).' If the employee doesn't want to sign: note it in the record with a witness.
**Step 4 — GDPR-compliant archiving:** Keep the BEM file separate from the personnel file; the personnel file only contains the offer, consent or refusal, and agreed measures, no diagnoses. Only the people conducting the BEM have access — not the direct supervisor and not the health working group. How to keep the BEM file in line with data protection rules is shown in the guide BEM file and data protection.
How do you put the measure in place?
- 1File the certified-mail receipt of the BEM invitation in the BEM file
- 2Note the 14-day response deadline with its expiry date
- 3If there is no response after the deadline: add a note "No response, refusal assumed" with the date
- 4In case of active refusal: written confirmation or witness note
- 5Keep the BEM file separate from the personnel file — its own folder, its own directory
- 6Restrict access to the BEM file to the BEM officers or BEM team – not to WHP coordination or the health committee
- 7Set a deletion period: there is no statutory period; the BEM file is usually deleted three years after the process ends; the offer and the refusal stay in the personnel file as proof – without health data
What do you need for it?
- Effort
- under 30 min
- Cost
- Free
- Duration
- 15 minutes
- Setup
- 5 min
- ✓ Traceable documentation in case of a termination due to illness — the legal assessment is handled by employment law specialists
- ✓ GDPR Art. 9 compliance for special categories of data
- ✓ Clear separation of BEM file and personnel file helps prevent data protection violations
- ✓ Complete records in case labor court proceedings follow
Adopt it for your company
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Contributes to
Action field
Governance & Compliance
A fitting occasion
- BEM Process Review: Workplace Reintegration Management (German Social Code IX, Section 167)