BEM and Dismissal Protection

Termination for Illness Without a BEM Program: What Does the Employer Actually Risk?

Note: this reflects German employment law. A termination for illness without BEM is not automatically invalid. Under BAG ruling 2 AZR 755/13, however, the employer then bears an extended burden of presentation and proof: it must show that even a BEM would not have revealed milder measures — nearly impossible in dismissal protection proceedings without documentation.

BEM and Dismissal Protection: What the Federal Labor Court Decided

Situation	Risk for Employer	Protection Through BEM Documentation
Termination without a BEM offer	Extended burden of presentation and proof — if the employer fails to meet it, the termination is disproportionate and therefore socially unjustified (Section 1 KSchG)	BEM invitation letter proves that BEM was offered
Employee declined BEM	After a proper invitation, the missing BEM does not count against the employer — the usual burden of proof for the grounds of termination remains	Written refusal + proof of a proper invitation (voluntariness, data protection)
BEM conducted but not documented	Same as having no BEM — no evidence for the court	Complete BEM record with date, participants, and outcome
Repeat termination without a new BEM	Extended burden of proof again if more than six weeks of incapacity occur within a year after the BEM (BAG 2 AZR 138/21)	Document a new BEM offer as soon as the threshold is exceeded again
Termination at a small business (up to 10 employees)	No KSchG protection (Section 23 KSchG) — but AGG discrimination risk remains	The BEM obligation applies regardless of company size; a documented BEM can reduce the risk of a claim under the AGG

What does Federal Labor Court ruling 2 AZR 755/13 actually mean?

In its decision 2 AZR 755/13 (November 20, 2014), Germany's Federal Labor Court (Bundesarbeitsgericht, BAG) clarified: BEM is not a formal precondition for the validity of a termination. If the employer did not previously conduct a BEM under Section 167(2) SGB IX, however, it bears an extended burden of presentation in dismissal protection proceedings — it must specifically show that even a BEM would not have revealed milder measures and that future absences could not have been avoided to a relevant extent through statutory support or benefits from rehabilitation providers. If it fails to do so, the termination is disproportionate.

The BAG's reasoning: BEM is a statutory instrument for clarifying whether alternatives to termination exist (relocation, reduced hours, workplace adaptation, phased return to work). An employer who skips this clarification process cannot credibly claim to have exhausted all milder measures.

A “milder measure” within the meaning of the BAG ruling is any step that could make the termination unnecessary. The burden of proof lies entirely with the employer — not the employee. Without BEM documentation, the employer can hardly meet this burden in practice.

What does BEM documentation achieve in dismissal protection proceedings?

In dismissal protection proceedings, the employer must prove three things: first, that it fulfilled its duty to initiate BEM (a dated BEM invitation letter); second, that the BEM conversation was properly conducted and recorded, or that the employee declined the offer in writing; and third, that despite BEM, no reasonable alternative to termination could be found.

Documents that hold up in proceedings: the written invitation letter noting voluntary participation, data protection, and the right to bring a companion; the BEM record with participants' names, date, measures discussed, and outcome; in case of refusal, a written confirmation of the employee's refusal; for repeat cases, evidence that a new BEM was initiated for each new period of incapacity.

Documents that fall short: verbal remarks made in a staff meeting, emails without explicit reference to BEM, general return-to-work conversations without a formal BEM framework. Courts examine the BEM process formally — a substantively good measure without a documented BEM framework is treated as if no BEM took place at all.

Which mistakes with BEM and termination are common?

Mistake 1 — BEM after the decision to terminate: BEM must be conducted before the decision to terminate is made. Courts do not recognize a BEM held afterward “for cover” — its clarifying purpose is defeated.

Mistake 2 — Missing documentation of the employee's refusal: If an employee declines BEM, this only protects the employer if the refusal was recorded in writing — with date, content of the invitation, and a note that participation is voluntary and that, under German law, declining must not be sanctioned. Without this record, the legal situation is the same as having no BEM at all.

Mistake 3 — BEM as a mere formality: A BEM conversation that is evidently held only to justify the termination, without genuinely examining alternatives, is deemed improper by the BAG. The conversation must be conducted with an open outcome — if the termination has already been decided internally, the BEM is not open-ended and misses its purpose.

Mistake 4 — No new BEM for a repeat case: After a period with a BEM offer and the employee's return, the BEM obligation arises again once a new period of incapacity again exceeds six weeks within a year — even if less than a year has passed since the last BEM (BAG, November 18, 2021 – 2 AZR 138/21). Many employers assume that a BEM conducted once is permanently “checked off” — that is incorrect.

Related measures & topics

Key takeaways

Note: this reflects German employment law. Without BEM, a termination for illness is not automatically invalid — but under BAG ruling 2 AZR 755/13 the employer bears an extended burden of presentation and proof.
The employer must show that even a BEM would not have changed anything — documentation is its most important evidence.
An employee's refusal only helps the employer if documented in writing with notice of voluntary participation and data protection.
A BEM held as a formality or after the decision to terminate is not recognized by the BAG.
If the threshold is exceeded again within a year after the BEM (more than six weeks of incapacity), a new BEM must be offered (BAG 2 AZR 138/21).

Frequently asked questions

Must BEM take place before every termination for illness?+

Legally, BEM is not a formal precondition for validity — but in practice it is almost always necessary: if the employee was unable to work for more than six weeks, continuously or repeatedly, within the 12 months before the termination (Section 167(2) SGB IX) and the employer did not offer BEM or did not document the refusal, the employer must show and prove that even a proper BEM could not have prevented the termination (BAG 2 AZR 755/13). In practice, that is very hard.

What if the employee declines BEM multiple times?+

Each refusal must be documented separately. After repeated refusals, the employer may proceed with termination — presenting the documented refusals in proceedings. Courts examine whether the invitations were proper (noting voluntary participation, data protection, right to bring a companion). Missing notices in the invitation render the documented refusal worthless.

Does the BAG case law also apply to small businesses with up to 10 employees?+

The German Termination Protection Act (KSchG) only applies to businesses with more than ten employees (Section 23 KSchG), so a small business does not need to socially justify a termination; courts only check whether it is arbitrary or in bad faith (Section 242 BGB). The BEM obligation itself still applies, because Section 167(2) SGB IX has no minimum size. A documented BEM can also reduce the risk of a discrimination claim under the AGG (e.g., for a disability that causes absences) and signals sound workplace practice.

How detailed must the BEM record be for dismissal protection purposes?+

No legal formalities are required — but the record should include at minimum: date and location of the conversation, 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). Signatures from all participants are not mandatory but strongly recommended.

BEM Documentation Step by Step — So Nothing Is Missing When It Counts

EasyWHP flags BEM candidates early as a precaution — from 30 days of sickness within 12 months, with weekends inside a sick note counted — generates invitation letters based on the Section 167 template, and documents every BEM step.

Try EasyWHP for Free WHP Compliance Check

Sources

Last updated: 2026-06-27. Not legal or tax advice — have your specific case reviewed by a professional.

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