BEM and Protection Against Dismissal
Dismissal for illness without BEM: What does the employer really risk?
A dismissal for illness without BEM is regularly disproportionate under BAG 7 AZR 698/14. The employer must show why less drastic measures (BEM) were not considered — without documentation, this is nearly impossible to prove in a dismissal protection lawsuit.
BEM and Protection Against Dismissal: What the Federal Labor Court Has Ruled
| Situation | Risk for Employer | Protection Through BEM Documentation |
|---|---|---|
| Dismissal without a BEM offer | Socially unjustified (Sec. 1 KSchG) — dismissal regularly invalid | BEM invitation letter proves compliance with the duty |
| Employee declined BEM | Employer bears an increased burden of proof — must demonstrate all less drastic measures | Written refusal plus data protection notice relieves the employer |
| BEM conducted but not documented | Same as without BEM — no proof before the court | Complete BEM record with date, participants, and outcome |
| Repeat dismissal without a new BEM | Same invalidity consequence applies for a new period of incapacity | Document a new BEM offer after each separate period of incapacity |
| Dismissal at a small business (<10 employees) | No KSchG protection — but AGG discrimination risk remains | BEM protects against equal-treatment claims even without KSchG |
The BAG Ruling 7 AZR 698/14 — What It Actually Means
Note: this article discusses German employment law — the BEM requirement under SGB IX and rulings of the German Federal Labor Court (Bundesarbeitsgericht, BAG). It is general information, not legal advice, and the rules described here do not apply outside Germany. In its ruling 7 AZR 698/14 (May 19, 2016), the BAG clarified that a dismissal for illness is regularly disproportionate if the employer did not first conduct a BEM under Section 167(2) SGB IX. In the dismissal protection lawsuit, the employer bears what is known as the secondary burden of proof — they must specifically explain why no BEM was carried out and which less drastic measures they nevertheless considered.
The BAG's reasoning: BEM is a statutory instrument for clarifying whether alternatives to dismissal exist (transfer, part-time work, workplace adaptation, phased return to work). Anyone who skips this clarification process cannot credibly claim to have exhausted all less drastic measures.
A 'less drastic measure' within the meaning of the BAG is any measure that could make the dismissal unnecessary. The burden of proof lies entirely with the employer — not the employee. Without BEM documentation, the employer can hardly meet this burden of proof in practice.
How BEM Documentation Protects the Employer in a Dismissal Protection Lawsuit
In the dismissal protection lawsuit, the employer must prove three things: first, that they fulfilled their duty to initiate the process (i.e., a BEM invitation letter with a date); second, that the BEM discussion was properly conducted and recorded, or that the employee declined the offer in writing; and third, that despite the BEM, no reasonable alternative to dismissal could be found.
Documents that hold up in court: the written invitation letter noting voluntary participation, data protection, and the right to bring a support person; the BEM record with the names of participants, the date, the measures discussed, and the outcome; in the case of refusal, a written confirmation of the refusal by the employee; and in the case of repeat episodes, proof that a new BEM was initiated for each new period of incapacity.
Documents that are not sufficient: verbal remarks made during an employee conversation, emails without an explicit reference to BEM, general return-to-work conversations without a formal BEM framework. The court examines the BEM process formally — a substantively good measure without a documented BEM framework is treated as if no BEM took place at all.
Common Mistakes With BEM and Dismissal
Mistake 1 — BEM after the decision to dismiss: BEM must be conducted before the decision to dismiss is made. Courts do not recognize a retroactive BEM carried out 'for cover' — the purpose of clarification is then defeated.
Mistake 2 — Missing documentation of the employee's refusal: if an employee declines the BEM, this only relieves the employer if the refusal was recorded in writing — with the date, the content of the invitation, and a note that the refusal carries no disadvantages for the employee. Without this record, the legal situation is the same as if no BEM had taken place at all.
Mistake 3 — BEM as a mere formality: a BEM discussion that is clearly conducted only to support the dismissal and does not examine genuine alternatives is deemed improper by the BAG. The discussion must be conducted with an open outcome — even if the employer has already privately decided to dismiss, this must not be communicated during the discussion.
Mistake 4 — No new BEM upon repetition: after a period with a BEM offer and the employee's return, the BEM obligation arises again with a new period of incapacity (once it again reaches the six-week threshold). Many employers assume that a BEM conducted once is permanently 'checked off' — that is incorrect.
Related measures & topics
Key takeaways
- A dismissal for illness without BEM is regularly disproportionate under BAG 7 AZR 698/14
- The employer bears the secondary burden of proof — documentation is the only protection
- An employee's refusal only relieves the employer if documented in writing, with notice of voluntary participation and data protection
- BEM conducted as a formality or after the decision to dismiss is not recognized by the BAG
- A new BEM obligation arises after each new period of incapacity (≥6 weeks)
Frequently asked questions
Must BEM take place before every dismissal for illness?+
Yes, if the six-week threshold (Section 167(2) SGB IX) was reached within the 12 months before the dismissal. If the employer did not offer BEM, or the refusal was not documented, the dismissal is regularly disproportionate (BAG 7 AZR 698/14). Exception: if the employer proves that the BEM did not take place for reasons beyond their control — in practice, this is very difficult.
What if the employee declines BEM multiple times?+
Each refusal must be documented separately. In the case of repeated refusal, the employer may proceed with the dismissal — they then present the documented refusals in the lawsuit. The court examines whether the invitations were proper (notice of voluntary participation, data protection, right to bring a support person). Missing notices in the invitation render the documented refusal worthless.
Does the BAG case law also apply to small businesses with fewer than 10 employees?+
The KSchG does not apply to businesses with 10 or fewer employees — so social justification of the dismissal is not required. Nevertheless, BEM still provides protection: it reduces the risk of a discrimination claim under the AGG (e.g., for a disability that leads to absences) and is a sign of good workplace practice. Courts also take BEM into account at small businesses when examining questions of good faith.
How detailed must the BEM record be for dismissal protection purposes?+
No legal formalities are required — but the following minimum entries are needed: date and location of the discussion, names of all attendees, confirmation that the employee was informed about voluntary participation and data protection, the measures discussed (even if rejected), and the outcome (BEM concluded / further measures agreed / employee declined). A signature from all participants is not mandatory, but strongly recommended.
Automatic BEM Documentation — No More Dismissal Risk
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Sources
- BAG Ruling 7 AZR 698/14 (May 19, 2016) — Disproportionality When BEM Is Missing ↗
- SGB IX Section 167(2) — Workplace Reintegration Management (BEM) ↗
- KSchG Section 1 — Social Justification for Dismissal ↗
Last updated: 2026-06-27. This guide refers to German law (§ 167 SGB IX) and is not legal advice — have your specific case reviewed by a professional.