The three-stage test
German labour courts examine an illness-related dismissal in three stages: a negative health prognosis, a substantial impairment of business interests, and a balancing of interests. The BEM comes into play at the level of proportionality — dismissal is always the last resort, and the BEM is the tool designed to find milder alternatives.
Not a formal validity requirement — yet it decides cases
The Federal Labour Court has held for years that carrying out a BEM is not a formal validity requirement of a dismissal, but that the provision gives concrete shape to the principle of proportionality, because a BEM can identify and develop milder means than dismissal (BAG, judgment of 20 November 2014, 2 AZR 755/13). The practical consequence lies in the burden of proof: if the employer was obliged to offer a BEM and failed to do so, it must present in detail why the procedure would have been objectively useless in every respect:
„Will sich der Arbeitgeber hierauf berufen, hat er die objektive Nutzlosigkeit des bEM darzulegen und ggf. zu beweisen. Dazu muss er umfassend und detailliert vortragen, warum weder ein weiterer Einsatz auf dem bisherigen Arbeitsplatz, noch dessen leidensgerechte Anpassung oder Veränderung möglich gewesen seien.”
„If the employer wishes to rely on this, it must set out and, where necessary, prove that the BEM would have been objectively useless. To that end it must explain comprehensively and in detail why neither continued deployment on the current job nor its health-appropriate adaptation or modification would have been possible.”
Federal Labour Court (BAG), judgment of 20 November 2014, 2 AZR 755/13 — own translation
This bar is extremely high. In practice employers almost never clear it — which is why lawyers call the BEM the de facto precondition of an effective illness-related dismissal.
Typical employer mistakes
No invitation or no proof of delivery. The employer bears the burden of proving that the BEM invitation reached you. A bare claim that something was sent is not enough.
Making the BEM conditional on a data consent form. In the case decided by the BAG on 15 December 2022 (2 AZR 162/22) the employer refused to start the BEM until the employee signed a pre-drafted data protection declaration — although she wanted to take part, asked questions and proposed her own wording. The court held that written consent is not a precondition: the employer could and should have started with an initial meeting about the procedure itself.
No new BEM after renewed illness. A BEM has no shelf life. If more than six weeks of incapacity accumulate again within a year after the previous BEM was completed, a new invitation is required (BAG, judgment of 18 November 2021, 2 AZR 138/21).
A defective procedure. Invitations without the required information on the aims of the BEM and the scope of collected data, blurring the line between an information meeting and the BEM itself, or mistakes made by an external provider running the BEM for the employer. In a recent case the Baden-Württemberg Regional Labour Court held that the employer is accountable for its provider’s procedural errors as for its own under section 278 of the Civil Code (judgment of 14 January 2025, 15 Sa 22/24) — the dismissal failed.
Approval by the Integration Office does not save the dismissal
For severely disabled employees the employer needs prior approval of the Integration Office. That approval, however, creates no presumption in the employer’s favour:
„Die Zustimmung des Integrationsamts zu einer krankheitsbedingten Kündigung begründet nicht die Vermutung, dass ein (unterbliebenes) betriebliches Eingliederungsmanagement die Kündigung nicht hätte verhindern können.”
„The approval of the Integration Office for an illness-related dismissal does not give rise to a presumption that a (missing) occupational reintegration management could not have prevented the dismissal.”
Federal Labour Court (BAG), judgment of 15 December 2022, 2 AZR 162/22 (headnote) — own translation
The labour court assesses the dismissal independently, by employment-law standards. The administrative approval neither replaces the BEM nor eases the employer’s burden of proof.
When the missing BEM will not help you
- if you refused a properly offered BEM — the omission is then neutral,
- during the first six months of employment (waiting period): the Dismissal Protection Act does not yet apply, and the BAG confirmed in 2025 that not even the prevention procedure for disabled employees is required in that period (judgment of 3 April 2025, 2 AZR 178/24),
- in small businesses with up to ten employees, where the Dismissal Protection Act generally does not apply.
After receiving notice
- count the deadline: three weeks from delivery to file a dismissal protection claim (section 4 KSchG),
- secure documents: contract, the notice with its envelope, sick notes, BEM invitations, correspondence,
- reconstruct events: was there a BEM, who took part, how did it end,
- do not sign termination or settlement agreements without review — you risk a benefit suspension and a wasted severance,
- register with the employment agency as a jobseeker without delay,
- remember: severance pay is usually the result of negotiation in court — a weak employer position raises it considerably.
Frequently asked questions
Is a dismissal without a BEM automatically void?
No. The employer may in theory demonstrate that a BEM would have been objectively useless — but in practice this almost never succeeds. The missing BEM is one of the employee’s strongest arguments.
How long do I have to file a claim?
Three weeks from delivery of the notice (section 4 KSchG). After that the dismissal is generally deemed effective.
I once refused a BEM — do I still have a chance?
It depends. The refusal only works against you if the invitation was proper, and new periods of illness after the refusal trigger the obligation to invite you again.
The employer has the Integration Office approval — is the case lost?
No. The approval is a separate administrative procedure. The labour court reviews the dismissal independently, including the consequences of a missing BEM.
Many short sick notes instead of one long illness — does it matter?
No. All periods of incapacity within the last twelve months are added together.
What can I realistically achieve?
Continued employment or — more often — a settlement with severance pay. The weaker the employer’s position, the better the terms.
Based on section 167 SGB IX, sections 1, 4 and 23 KSchG and the case law of the Federal Labour Court: judgments of 20 November 2014 (2 AZR 755/13), 18 November 2021 (2 AZR 138/21), 15 December 2022 (2 AZR 162/22) and 3 April 2025 (2 AZR 178/24), as well as the Baden-Württemberg Regional Labour Court, judgment of 14 January 2025 (15 Sa 22/24). Legal status: July 2026. This article is for information purposes and does not replace legal advice in an individual case.