The problem in one picture
Refusing a BEM: no direct penalty, but a weaker position if dismissed later
Participation is voluntary. Staying away leads to neither a written warning nor a dismissal. The consequence only shows in a later illness-related dismissal case.
- The riskAfter a refusal the missing BEM becomes neutral. The employer finds an illness-related dismissal considerably easier to defend.
- What it costsThe missing BEM no longer helps in a dismissal case. The forum for lighter duties, an adapted workstation or a gradual return is lost as well.
- What to doDo not ignore the invitation. If a date does not work, send a short note asking for a new one. A person of trust may come along.
Rule of thumb: attend, but there is no need to disclose diagnoses. Describing the work-related limitations is enough.
What is a BEM?
BEM stands for „betriebliches Eingliederungsmanagement” — occupational reintegration management. Under section 167 (2) of the German Social Code IX (SGB IX), every employer must offer this procedure to any employee — disabled or not — who has been unfit for work for more than six weeks within the last twelve months. The purpose is to find out how the incapacity can be overcome, how new absences can be prevented and how the job can be preserved. The Federal Labour Court describes the BEM as an open-ended search process:
„Das bEM ist ein verlaufs- und ergebnisoffener Suchprozess, der individuell angepasste Lösungen zur Vermeidung zukünftiger Arbeitsunfähigkeit ermitteln soll.”
„The BEM is a search process, open as to its course and outcome, intended to identify individually tailored solutions to avoid future incapacity for work.”
Federal Labour Court (BAG), judgment of 15 December 2022, 2 AZR 162/22 — own translation
In practice it is one or several meetings about concrete solutions: adapting your workstation, a different role, changed working hours, gradual return to work (Wiedereingliederung), rehabilitation or benefits from social insurance institutions.
At a glance
The BEM: an open-ended search for solutions
When must the employer offer a BEM?
- more than six weeks of incapacity in total within the last twelve months — counted back from today, not per calendar year,
- shorter sick notes are added together — with a five-day week that is roughly 30 working days,
- the type and cause of the illnesses are irrelevant.
The initiative lies with the employer. If no invitation comes, it is mainly the employer who suffers the consequences in a later dismissal case. You, on the other hand, cannot enforce a BEM in court — the Federal Labour Court has ruled that the provision gives employees no individual claim (BAG, judgment of 7 September 2021, 9 AZR 571/20). A missing BEM does, however, strengthen your position considerably if you are dismissed later — see our article on dismissal without a BEM.
At a glance
The threshold: more than six weeks in twelve months
The type and cause of the illnesses are irrelevant. Employees cannot enforce a BEM in court (BAG 9 AZR 571/20).
Who takes part — and who may accompany you?
- the employer, usually HR or your line manager,
- you — without your consent no BEM takes place at all,
- the works council, but only if you agree,
- the representative body for severely disabled employees, where applicable,
- the company doctor if needed, and rehabilitation providers or the Integration Office where benefits come into play.
Since June 2021 you additionally have the right to bring a person of trust of your own choosing (section 167 (2) sentence 2 SGB IX) — a family member, a colleague or a lawyer. You bear the costs, but the employer cannot refuse their presence. For employees whose German is not fluent, this is doubly valuable.
At a glance
Who sits at the table, and on what condition
| Who | When | Good to know |
|---|---|---|
| Employer | always | usually HR or the line manager |
| Employee | always | without consent no BEM takes place |
| Works council | only if the employee agrees | the employee decides |
| Representative body for severely disabled employees | where applicable | – |
| Company doctor | if needed | – |
| Rehabilitation providers, Integration Office | where benefits come into play | – |
| Person of trust | on request, since June 2021 | costs borne by the employee, the employer cannot refuse their presence |
The person of trust can be a family member, a colleague or a lawyer (section 167 (2) sentence 2 SGB IX). Doubly valuable for employees whose German is not fluent.
Do you have to agree?
No. Participation is voluntary — the procedure only takes place with your consent and involvement, and nobody can force you into it. Before you decline or ignore the invitation, though, you should know the concrete consequences.
What actually happens if you do not show up?
Directly — nothing. Because participation is voluntary, neither staying away from the meeting nor withholding consent breaches your contractual duties. The employer cannot issue a written warning (Abmahnung) for it, let alone dismiss you for that reason. If you do not react at all, the employer will usually set a deadline and announce that silence will be treated as a refusal — and that is where its leverage ends.
The real consequence appears later, if you are dismissed for illness-related reasons. After your refusal the missing BEM becomes neutral — the court applies the ordinary burden of proof, as if no BEM duty had ever existed, which makes the dismissal considerably easier to defend. The Federal Labour Court puts it plainly:
„Anderenfalls spricht der Umstand, dass ein Arbeitnehmer nicht zu seiner (weiteren) Durchführung bereit ist, grundsätzlich dagegen, dass durch ein bEM mildere Mittel als die Kündigung hätten identifiziert werden können.”
„Otherwise, the fact that an employee is not prepared to take part in its (further) conduct generally speaks against the assumption that a BEM could have identified milder means than dismissal.”
Federal Labour Court (BAG), judgment of 15 December 2022, 2 AZR 162/22 — own translation
There is an exception: if you refused precisely because the employer ran the procedure incorrectly — for instance by making a signed blanket data consent a condition — your refusal does not count against you. The court assesses this in the individual case.
On top of that comes the practical loss: you give up the forum in which lighter duties, an adapted workstation or a gradual return could have been agreed. In most situations we therefore advise against ignoring the invitation. And if you cannot attend a meeting, do not stay silent — send a short note and ask for a new date.
At a glance
Not attending: no direct penalty, a weaker position later
- DirectlyNo written warning (Abmahnung), no dismissal. Staying away or withholding consent breaches no contractual duty.
- No reaction to the invitationThe employer usually sets a deadline and treats silence as a refusal. That is where its leverage ends.
- Later illness-related dismissalThe missing BEM becomes neutral. The dismissal is considerably easier to defend.
Source: BAG, judgment of 15 December 2022, 2 AZR 162/22.
Your health data — what you do not have to do
You do not have to disclose diagnoses or release your doctors from confidentiality. Describing the work-related limitations is enough. A frequent employer mistake is making the start of the BEM conditional on your signing a pre-drafted data protection consent form. The Federal Labour Court rejected this clearly: written consent to the processing of health data is not a statutory precondition of a BEM (BAG, judgment of 15 December 2022, 2 AZR 162/22). You may ask questions, propose your own wording or simply decline to sign — the procedure must still be able to start. BEM records must also be kept separately from your general personnel file.
At a glance
Health data: what employees do not have to do in a BEM
- Disclosing diagnoses
- Releasing doctors from confidentiality
- Signing a pre-drafted data protection consent form as a condition for the start
- Describing the work-related limitations
- Asking questions, proposing your own wording
- Declining to sign, the procedure must still be able to start
BEM records must be kept separately from the general personnel file.
You received a BEM invitation
- reply within the stated deadline, preferably in writing,
- decide who should accompany you: works council, person of trust, lawyer,
- prepare a list of what aggravates your condition at work and what would concretely help,
- do not sign blanket data consents on the spot,
- take notes of every meeting and keep all correspondence,
- if dismissal is in the air — have the documents reviewed by a lawyer first.
Frequently asked questions
Can I be given a written warning for not attending the BEM meeting?
No. Participation is voluntary — mere non-attendance supports neither a warning nor a dismissal. The consequences are procedural only (see above).
May I bring a lawyer?
Yes, as your person of trust under section 167 (2) sentence 2 SGB IX. You bear the costs yourself.
Do I have to reveal my diagnosis?
No. A description of the work-related limitations is sufficient. What you disclose is your decision.
What happens if I refuse?
Nothing directly — no warning, no dismissal. The consequence appears in a later illness-related dismissal case: you can no longer rely on the missing BEM, and under BAG case law your refusal speaks against the assumption that a BEM would have produced milder solutions.
Is the BEM the first step towards dismissal?
It must not be — the statutory aim is to preserve your job. Document the process and use your right to a person of trust. A properly conducted BEM also raises the bar for any later dismissal.
Does the BEM apply in small companies?
According to the prevailing view, yes. Note, however, that in businesses with up to ten employees the Dismissal Protection Act usually does not apply, which limits the procedural consequences of a missing BEM.
Based on section 167 (2) SGB IX and the case law of the Federal Labour Court: judgments of 15 December 2022 (2 AZR 162/22), 7 September 2021 (9 AZR 571/20) and 18 November 2021 (2 AZR 138/21). Legal status: July 2026. This article is for information purposes and does not replace legal advice in an individual case.