Dismissed because of illness: why the BEM invitation matters

What is BEM intended to achieve?

After prolonged or repeated incapacity for work, the aim is to explore how the employee can remain in employment. Section 167(2) of Germany’s Social Code IX sets a threshold of more than six weeks of incapacity within one year. The workplace reintegration process, known as BEM, requires the affected person’s consent and participation. It considers support and adjustments that could prevent or reduce further absences.

The employer must first explain the objectives and the nature and scope of the data used. Employees may involve a trusted person of their choice. When assessing the situation, it therefore helps to examine both the actual invitation and any previous discussions, rather than just the document’s heading.

The case: receipt of the invitation remained unproven

In case 2 AZR 184/25, the employer sent another BEM invitation after further periods of illness. The employee disputed receiving it. The employer relied on evidence of posting, tracking information and a reproduced delivery record. The postal worker also gave evidence. Nevertheless, receipt remained unproven (Federal Labour Court, paragraphs 5 to 11 and 20 to 32).

The delivery sequence established in the proceedings was crucial: the postal worker confirmed delivery on the scanner before putting the letter into the mailbox. That did not establish a presumption that delivery had actually occurred. His testimony did not close the evidential gap either. The Federal Labour Court upheld the finding that the dismissal was invalid (paragraphs 12 and 25 to 31).

An earlier refusal does not settle the issue permanently

Refusing an earlier BEM does not automatically rule out a later process. If further incapacity exceeds six weeks within one year after that refusal, the employer generally has to make another attempt. It cannot simply rely on the earlier response. A full year need not have passed since the refusal (Federal Labour Court, paragraphs 18 and 19).

The limits of the ruling

The judgment does not render every form of registered post worthless. It concerns the particular scanning procedure and evidence established in this case. Nor does a missing BEM automatically protect an employee from dismissal. The employer may demonstrate and, where necessary, prove that a BEM could objectively have done nothing to avoid dismissal. It failed to do so here (Federal Labour Court, paragraph 25 and paragraphs 33 to 37).

Our assessment: employees facing illness-related dismissal should have the invitation, evidence of receipt and possible support measures examined together. One individual defect does not replace an assessment of the whole case. General dismissal protection applied in the BAG proceedings; whether it applies to a particular employment relationship needs separate assessment (paragraph 13).

Received notice? The court deadline still applies

Section 4 of the German Dismissal Protection Act generally requires a court challenge within three weeks of receiving written notice. Missing that deadline risks the dismissal being treated as valid from the outset under section 7. Statutory exceptions require separate assessment. Waiting until an earlier BEM invitation has been clarified is therefore not a reliable strategy.

A brief timeline and the documents actually available will help with the assessment. Record when you received each letter and describe any uncertainty accurately.

• Keep the dismissal letter, envelope and a record of the receipt date.
• Gather BEM invitations, your responses and records of discussions.
• Have your employment contract and a timeline of periods of incapacity available.
• Have the court deadline checked immediately, even if some documents are missing.