Update Employment Law October 2022

Termination by mutual agreement of a company integration management system that is insufficient in terms of content

(Higher Labor Court of Düsseldorf 17.05.2022 - 14 Sa 825/21)


In the case of frequent (short-term) illnesses, not only a negative health prognosis is required to justify a termination. It is also imperative that the termination is proportionate, i.e. that there are no milder means to avoid or reduce future absences. In order to be able to determine this, a so-called operational integration management (bEM) is carried out before a person-related termination is issued. It can happen that the bEM is terminated prematurely. In this context, the Higher Labor Court of Düsseldorf recently had to deal with the question of whether an integration management process is deemed to have been properly completed if it is terminated prematurely by mutual agreement between the parties.


The plaintiff employee was employed as an aviation security assistant by the defendant employer, a security company offering passenger screening services. The plaintiff was employed by the defendant during the period from August 2018 to March 2021, first on a temporary basis and later on a permanent basis. He recorded 118 days of sick leave in 2019 and 2020. The defendant paid continued remuneration of around € 10,000.00 gross for this. In July 2020, the defendant invited the plaintiff to a clarification meeting within the framework of bEM. The causes of the illness were to be determined and a joint approach found to prevent the plaintiff's future sickness-related absences. 
During the bEM, the plaintiff informed the defendant that the causes of his absences were mainly stress-related and due to events from the near past. These would not burden him any further. He assured the defendant of his full ability to work in the future. For this reason, the contracting parties agreed to end the bEM by mutual consent without continuing the search process to the planned end.
The defendant terminated the employment relationship with the plaintiff due to further sickness-related absences. The plaintiff was successful in his action for protection against dismissal in the first instance before the Labor Court of Düsseldorf. The Higher Labor Court of Düsseldorf allowed the appeal lodged by the defendant against the first-instance ruling.


The Higher Labor Court of Düsseldorf ruled that the ordinary termination of the defendant was legally valid. The employer had been justified in assuming that the illnesses which had been the basis for the sick leave in the past would continue in the future. The predicted absences also led to a significant impairment of the operational interests. As part of the necessary weighing of interests, the Higher Labor Court of Düsseldorf found that no milder means of avoiding or reducing the plaintiff's absences was apparent. The bEM carried out by the defendant, which was terminated by mutual agreement between the contracting parties, had not revealed any mitigating means. 

The Higher Labor Court of Düsseldorf dealt in particular with the question of whether an incomplete integration management process is to be judged as defective if it was concluded by the parties by mutual agreement. The Higher Labor Court of Düsseldorf correctly points out that the parties can conclude the bEM by mutual agreement. This can also take place at a time when the search process of the bEM has not yet been fully carried out.
The Higher Labor Court of Düsseldorf justifies this as follows: An employee must not give his consent to the implementation of a bEM from the outset. Conversely, he can also terminate a bEM by mutual agreement, regardless of how far it has been advanced. The employer does not violate his obligations under Section 167 (2) SGB IX (Social code IX) if he initiates the process and has shown the employee the objectives of the bEM and the intended data processing, but the employee, who has been informed in this way, does not engage in the voluntary bEM process. Thus, the decisive factor in the result was whether the employee had the necessary knowledge of the bEM procedure in order to be able to assess whether it should be terminated or continued. The defendant had properly fulfilled these requirements.

Contrary to the plaintiff's view, the Higher Labor Court of Düsseldorf did not recognize a renewed bEM as a necessary means in the weighing of interests. If, despite the bEM, there are objective facts that suggest a continuation of the absence, the employer is neither obligated to conduct another bEM nor to examine other employment opportunities.


The decision of the Higher Labor Court of Düsseldorf once again makes it clear to employers that it is essential to check whether bEM must be carried out for employees who are absent due to illness. If this is the case, special care must be taken in carrying it out in order to meet the burden of presentation and proof in any legal dispute. In particular, the employer also bears the burden of presentation and proof for the proportionality of the termination pursuant to Section 1 (2) sentence 4 KSchG (Dismissal Protection Act). To this end, it can refer to the findings from the bEM that all possible mitigating measures have been examined and that the notice of termination for personal reasons is proportionate.
For an employer, it is important to ensure that the initiation of a bEM procedure is carried out properly. In particular, the necessary information on the objectives of the bEM and the intended data agreement are required. If the employee has been sufficiently informed about the bEM procedure, the bEM procedure can also be terminated by mutual agreement before the end of the search process, without this resulting in evidentiary difficulties for any legal dispute that may arise later for the employer.

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