BEM (Occupational Reintegration Management): Section 167 SGB IX + AGG

Main article: Section 22 AGG — Reversal of Burden of Proof — covering indicative facts, full proof and a practitioner guide in detail.

1. The § 167 SGB IX obligation — employers of every size

If an employee is unable to work for more than 6 weeks (continuously or repeatedly) within 12 months, offering a BEM is mandatory. The employer is obliged to make the offer, not to carry the procedure out: acceptance is voluntary, and the employee may decline. The obligation under § 167(2) SGB IX does not depend on the size of the establishment and applies to all employers — there is no 50-employee threshold. The only trigger is exceeding the 6-week limit within 12 months.

A second level runs in parallel, independently of the BEM procedure: the prohibition of discrimination under the AGG. Under § 7(1) AGG, employees must not be discriminated against on a ground listed in § 1 AGG — and that also applies where the person committing the discrimination merely assumes that such a ground exists. For the BEM, this is the practically more important half of the provision: it is enough that managers assume a disability — whether it actually exists is not decisive; discrimination must also occur. Provisions in agreements that breach this prohibition are invalid under § 7(2) AGG.

2. AGG protection in the BEM: what is protected is the disability, not the illness

An illness is not in itself a ground of discrimination under § 1 AGG; protection starts with the disability into which an illness may develop — and discrimination because of an illness-related disability is prohibited.

§ 1 AGG lists as grounds of discrimination race or ethnic origin, sex, religion or belief, disability, age and sexual identity. For the BEM it is primarily the ground of "disability" that is relevant. Under EU law, this part of the AGG is based on Directive 2000/78/EC, whose Art. 1 expressly lays down a framework for combating discrimination on grounds of disability in employment and occupation.

Protection covers several forms, which § 3(1) to (4) AGG distinguishes: direct discrimination (a person receives less favourable treatment because of the characteristic), indirect discrimination (apparently neutral provisions may put persons at a particular disadvantage), as well as harassment and sexual harassment. In the BEM context the indirect variant is particularly relevant: an apparently neutral rule — for instance a return to work only where the person is fully fit for all duties — may affect employees with a disability in a particular way and thereby trigger the constellation of indirect discrimination under § 3 AGG, unless the rule is objectively justified.

3. The BEM process and the burden of proof

The BEM runs in 5 steps — written invitation, initial meeting, action plan, implementation, evaluation — and each step should be documented (a practitioner recommendation), because § 22 AGG places the counter-evidence on the employer as soon as the other side proves indicative facts suggesting discrimination on a ground under § 1 AGG.

The steps in detail — the documentation notes marked "Practice" are recommendations made by this article, not a statutory requirement:

1. Written invitation. Practice: record the date of receipt and the wording of the offer.
2. Initial meeting. Practice: minute the date, the participants and the adjustments discussed; on involving the company doctor in data protection terms, see section 4.
3. Action plan (adjustment of the workplace, reorganisation). Where adjustments to the workplace are made because of a disability, grants from the Integration Office (Integrationsamt) towards the adjustment costs may be available; this article does not deal with the funding rate, the reference value, the maximum amounts or the application route — for Austria the funding does not apply (see the Austria section). Practice: document the measures examined and those rejected, each with reasons.
4. Implementation. Practice: note the implementation date for each measure.
5. Evaluation. Practice: record the date and the result of the review.

For the employer this means: it must be able to show positively that the invitation, the course of the meeting, the measures examined and the reasons for rejecting them had nothing to do with the ground of disability. Under EU law, Art. 10 of Directive 2000/78/EC requires exactly this allocation.

In Austria this rule on the burden of proof does not apply to BEM situations — see the Austria section.

Practitioner recommendation: Before the first case arises, determine who keeps the documentation, where the records are held and who has access. The data protection requirements for this filing are set out in section 4.

4. Data protection in the BEM

Health data from the BEM are specially protected data and may only be processed in strict confidence; the company doctor and, where necessary, external advisers are regularly involved.

Behind this stands Art. 9(1) GDPR: the processing of health data is prohibited unless an exception under Art. 9(2) GDPR applies — for example the explicit consent of the data subject. That exception does not replace the legal basis: in addition, at least one of the conditions in Art. 6(1) GDPR must be met. Involving the company doctor is likewise processing of health data and also requires an exception under Art. 9(2) GDPR.

If you base the procedure on consent, the conditions of Art. 7 GDPR apply: the controller must be able to demonstrate that the data subject has consented (paragraph 1), and the data subject may withdraw consent at any time — withdrawal must be as easy as giving consent (paragraph 3). The lawfulness of processing carried out up to the withdrawal remains unaffected.

Where an external service provider is entrusted with processing on the controller's behalf, only processors providing sufficient guarantees of appropriate technical and organisational measures may be used; the cooperation must be governed by a contract or another legal act containing the minimum content of Art. 28(3) GDPR (subject matter, duration, nature and purpose of the processing, types of data, categories of data subjects, rights and obligations of the controller). If the data subject requests access, rectification or erasure, the time limit in Art. 12(3) GDPR runs: a response without undue delay and in any event within 1 month; extendable by 2 further months where the complexity or the number of requests makes this necessary — the extension must be explained within the first month.

Supervision in Germany lies with the authorities competent under Land law which monitor the application of data protection rules by non-public bodies (§ 40(1) BDSG, German Federal Data Protection Act); in Austria it is the Austrian Data Protection Authority (Datenschutzbehörde) (§ 18(1) DSG, Austrian Data Protection Act).

Practitioner recommendation: The consent should expressly name who receives the health data. Before any BEM records leave the organisation — for example with a funding application to the Integration Office (Integrationsamt) — also clarify which documents are to leave the house at all and which exception under Art. 9(2) GDPR you are basing the disclosure on.

5. Dismissal despite a BEM

A BEM that has been carried out does not automatically make a dismissal on health grounds permissible; it makes it comprehensible — where the process is documented (see section 3) — which alternatives were examined. According to the case law of the Federal Labour Court (BAG), by contrast, a dismissal on health grounds without a prior BEM is frequently socially unjustified. Alongside this, the special protection against dismissal for severely disabled people remains (§ 168 SGB IX); this article does not deal with its requirements.

If a dispute arises, two claims stand side by side at AGG level. Under § 15(1) AGG, where the prohibition of discrimination is breached, the employer is obliged to compensate the damage caused — unless it is not responsible for the breach of duty. Under § 15(2) AGG, appropriate monetary compensation may additionally be claimed for non-material damage. The frequently cited cap of 3 months' salary does not apply generally: it applies only where a person was not recruited and only where the employee would not have been recruited even had the selection been free of discrimination. In BAG practice, compensation typically ranges from 1 to 3 gross monthly salaries per claimant.

The short time limit is decisive: a claim under § 15(1) or (2) AGG must be asserted in writing within 2 months (§ 15(4) AGG) — in the case of an application or promotion from receipt of the rejection, otherwise from knowledge of the discrimination; the parties to a collective agreement may agree otherwise. The same 2-month time limit applies in the civil-law part of the AGG (§ 21(5) AGG), which concerns mass transactions and private-law insurance (§ 19 AGG) — not the employment relationship. This system of claims does not apply in Austria: damages, compensation and time limits are set out in section 7 and in the Austria section.

6. AGG organisational duties around the BEM

Irrespective of the individual BEM case, the employer must take the necessary measures to protect against discrimination, including preventive measures, and must point out that discrimination is impermissible; suitable training of employees counts under § 12(1) to (3) AGG as fulfilment of this duty. Where breaches occur, the employer must take appropriate measures such as a warning, redeployment, transfer or dismissal.

• Publication: the AGG and the information about the body responsible for complaints must be made known within the establishment (§ 12(5) AGG).
• Right to complain: employees who feel discriminated against on a ground under § 1 AGG may complain to the competent bodies of the establishment, the undertaking or the public authority; the complaint must be examined and the result communicated (§ 13(1) AGG). This also applies where the complaint concerns the conduct of a BEM — the requirement remains a link to a ground under § 1 AGG.
• Prohibition of victimisation: the employer must not discriminate against employees because they assert their rights under the AGG protection against discrimination or refuse to carry out an instruction that breaches it. The same protection applies to persons who support the employees or give evidence as witnesses (§ 16(1) AGG). The EU-law requirement for this protection against victimisation is set out in Art. 11 of Directive 2000/78/EC.

In Austria, the counterpart to the prohibition of victimisation is set out in § 13 GlBG (Part I) and § 27 GlBG (Part II): no one may be dismissed with or without notice or otherwise put at a disadvantage in reaction to a complaint within the undertaking or to the initiation of proceedings — including witnesses, persons providing information and supporting persons. In Germany, those affected may additionally turn to the Federal Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes) (§§ 25, 27 AGG); it provides independent support, informs about claims, arranges advice and seeks an amicable settlement. The Austrian bodies are named in the Austria section.

7. Time limits and claims at a glance (DE/AT)

In Germany, a 2-month time limit applies to claims arising from discrimination; in Austria the time limit depends on the claim and ranges from 14 days to 3 years. The table also states the compensation amounts laid down by law in both jurisdictions. The remaining Austrian rows concern the grounds of discrimination covered by the GlBG; disability is not among them (§ 3, § 17 GlBG) — on this see the Austria section. The last row does not concern discrimination claims but the data protection response deadline, which runs identically in both jurisdictions.