BEM in Small Businesses
BEM in Small Businesses: Does the Obligation Apply Even Without a Works Council or HR Department?
Yes. The BEM obligation (Section 167(2) SGB IX) applies regardless of company size. Without a works council, only the works council's involvement is omitted — not the obligation itself. In small businesses, management usually runs BEM itself; external agencies help for free.
BEM in Small Businesses: What Applies — What Doesn't
| Component | Applies in Small Businesses? | Note |
|---|---|---|
| BEM offer obligation (Section 167(2) SGB IX) | Yes, without restriction | The law sets no size threshold — the obligation applies from the very first employee |
| 42-day trigger (6 weeks of incapacity within 12 months) | Yes, identical | Cumulative over a rolling 12-month window; working days count |
| Works council involvement | Only if a works council exists | Without employee representation, this component simply doesn't apply — the BEM obligation itself remains |
| Written invitation + documentation | Yes, without restriction | Purpose, voluntariness, data protection, right to a support person — same requirements as in a large company |
| Dismissal Protection Act (KSchG) | Only above 10 employees (Section 23 KSchG) | BEM-related case law on dismissal mainly takes effect where the KSchG applies — the BEM obligation itself applies regardless |
| Free external support | Yes | The integration office (Integrationsamt) and the Uniform Points of Contact for Employers (Section 185a SGB IX) provide free advice |
Why the BEM Obligation Has No Company-Size Threshold
Note: this article describes obligations under German employment law and does not apply outside Germany. Section 167(2) SGB IX sets out the BEM obligation without any threshold: every employer must offer a Workplace Integration Management process (BEM) to any employee who has been unable to work for a total of more than six weeks within one year. Whether the company has 5, 15, or 500 employees makes no difference to the obligation — unlike many other areas of German employment law, there is no small-business exemption here.
The common assumption that 'BEM is something for large corporations with a works council' rests on a misreading of the law. Section 167(2) SGB IX provides that the relevant employee representation body is involved in the BEM process — but only if one exists. If there is neither a works council nor a representative body for employees with disabilities, this one component simply doesn't apply. Every other requirement — the offer itself, the written invitation, voluntariness, data protection, documentation — remains fully in force.
The group of employees covered is also identical in small businesses: the obligation applies to everyone in an employment relationship, including part-time staff, mini-jobbers, and fixed-term employees. Anyone who exceeds the 42 cumulative days of absence (working days, rolling 12-month window) must receive an invitation — even if they are the only employee with that absence record.
A second threshold is often confused with the BEM obligation: the 10-employee limit under Section 23 of the Dismissal Protection Act (KSchG). That limit only affects whether a dismissal must be socially justified — it has nothing to do with the BEM obligation. The Federal Labor Court's case law, under which a health-related dismissal issued without a BEM process is generally considered disproportionate (BAG 7 AZR 698/14), therefore has its fullest effect in companies with more than 10 employees. But the offer obligation under Section 167(2) SGB IX applies below that threshold too — and a documented BEM process offers protection even in the smallest company, for example against discrimination claims under the General Equal Treatment Act (AGG).
Who Runs the BEM Process When There's No HR Department?
In mid-sized companies without a dedicated HR department, management or the owner typically runs the BEM process themselves in practice: tracking absences, writing the invitation, holding the conversation, and documenting the outcome. This is entirely permissible under the law — it does not prescribe any particular role or qualification for running the process. What matters is that the process is carried out properly, not who leads it.
One point deserves particular attention in small businesses: the question of roles and trust. When the same person who leads the BEM conversation also decides on pay and continued employment, the bar for open conversation is higher. Credible communication is therefore all the more important: BEM is a support offer, not a form of oversight — participation is voluntary, and declining it carries no disadvantages. Where the relationship of trust is strained, an external person can moderate the conversation.
Free external support is explicitly available for small employers too: the Uniform Points of Contact for Employers (Section 185a SGB IX) exist by law to advise employers, independent of any particular provider, on hiring, training, and workplace participation — including questions of return-to-work. The integration office (Integrationsamt) provides support especially where employees with severe disabilities or equivalent status are involved. Health insurance funds and pension insurance providers can also be brought in as rehabilitation providers where participation benefits may apply.
Data protection applies in a 15-person company just as it does in a large corporation — and is, in practice, more delicate there, because 'everyone knows everyone.' BEM records are health data (Article 9 GDPR): keep them separate from the personnel file, restrict access to the person running the BEM process, and never note diagnoses or assumptions. A lockable folder or an access-restricted digital storage location is enough — but it must exist.
The Minimal Process: BEM That Works Even With 15 Employees
Step 1 — Identify the trigger: once a month, add up each employee's absences over the previous 12 months (working days, all illnesses combined). With 15 employees, that's a quarter hour with the payroll or time-tracking system — better still, automate it daily, since the obligation arises the moment the 42-day threshold is exceeded, not only at the review date.
Step 2 — Send a written invitation: create a reusable invitation template containing the required elements — the purpose of BEM (preserving the job, overcoming the incapacity to work), a reference to Section 167(2) SGB IX, the voluntary nature of participation and the fact that declining carries no consequences, a data protection notice, the right to bring a support person, and a named contact. The term 'Workplace Integration Management' (Betriebliches Eingliederungsmanagement) must be stated explicitly. Document delivery in a verifiable way and set a reasonable response deadline — in practice, 14 days has become standard.
Step 3 — Hold the conversation and agree on measures: explore, with an open outcome, what would make returning easier — workplace adjustments, changed duties, a different working-time model, or a gradual return to work under a medically supervised step plan. Record the agreed measures in writing, along with who is responsible and a date for reviewing whether they worked.
Step 4 — Document everything, including refusals: the invitation, proof of delivery, the employee's response (acceptance, refusal, or silence after the deadline), the meeting record, and the outcome all belong in a separate BEM file. If the employee declines, the obligation ends for that episode — but only the documented refusal later proves that the offer was made. If the threshold is exceeded again within a new 12-month window, the process starts over.
Related measures & topics
Key takeaways
- Section 167(2) SGB IX sets no company-size threshold — the BEM obligation applies from the very first employee
- Without a works council, only the employee representation body's involvement is omitted — the offer, invitation, and documentation remain fully required
- In small businesses, management runs the BEM process itself — the Uniform Points of Contact (Section 185a SGB IX) and the integration office help free of charge
- The 10-employee threshold under Section 23 KSchG only affects dismissal protection, not the BEM obligation — BEM protects below that threshold too (AGG, good faith)
- The minimal process needs four building blocks: absence monitoring, an invitation template, an open-outcome conversation, and a separate BEM file
Frequently asked questions
Does the BEM obligation really apply with just 5 employees?+
Yes. Section 167(2) SGB IX contains no threshold tied to company size — the obligation applies to every employer from the very first employee. As soon as an employee has been unable to work for a total of more than six weeks within 12 months, a BEM process must be offered — even in a 5-person company with no works council and no HR department.
We don't have a works council — who do we need to involve instead?+
No one else. Involving the employee representation body under Section 167(2) SGB IX only applies if one exists. If there is neither a works council nor a representative body for employees with disabilities, this component simply doesn't apply. The employee may still bring a person of trust to the conversation — the invitation must mention this.
Who provides free help to a small business with BEM?+
The Uniform Points of Contact for Employers (Section 185a SGB IX) advise employers — independent of any provider and free of charge — on questions of workplace participation and return-to-work. The integration office (Integrationsamt) provides support especially for employees with severe disabilities or equivalent status. Health insurance funds and pension insurance providers can also be brought in as rehabilitation providers.
Under 10 employees, the KSchG doesn't apply — so why bother with BEM?+
Because the BEM obligation (Section 167(2) SGB IX) applies independently of the KSchG, and documentation protects even small businesses: it reduces the risk of a discrimination claim under the General Equal Treatment Act (AGG) — for example, where a disability leads to absences — and courts take it into account in good-faith disputes. And once the company grows past 10 employees, the full weight of the Federal Labor Court's case law applies: a dismissal issued without a BEM process is then generally considered disproportionate (BAG 7 AZR 698/14).
Can the managing director run the BEM conversation personally?+
Yes — the law prescribes no particular role for running the BEM process. In small businesses, management is often the only option. What matters is keeping the roles separate during the conversation: BEM is support, not an interrogation about absences, and must not be mixed with hints about dismissal. Where trust is strained, an external person (for example, arranged through the Uniform Point of Contact) can moderate the conversation.
BEM Without an HR Department — EasyBGM Handles Monitoring and Documentation
EasyBGM automatically detects the 42-day threshold every day, generates BEM invitations from a template, and documents every step in a traceable way — even in a 15-person company.
Sources
- Section 167(2) SGB IX — Workplace Integration Management ↗
- Section 185a SGB IX — Uniform Points of Contact for Employers ↗
- Section 23 KSchG — Scope of the Dismissal Protection Act ↗
- Section 1 KSchG — Social Justification of Dismissal ↗
- BAG Ruling 7 AZR 698/14 (19.05.2016) — Health-Related Dismissal Without BEM ↗
Last updated: 2026-07-07. This guide refers to German law (§ 167 SGB IX) and is not legal advice — have your specific case reviewed by a professional.