Employees who participate in company integration management (CIM for short) may, under the new legal situation of the Teilhabestärkungsgesetz (Participation Strengthening Act) of 02.06.2021, consult a confidant of their own choice with effect from 10.06.2021.
Pursuant to section 167 subsection 2 of the German Social Code IX (SGB IX), the employer must carry out company integration management if an employee is unfit for work for more than 6 weeks continuously or repeatedly within one year. The sickness-related absences do not have to exceed six weeks. It is sufficient that the sickness-related absences total more than six weeks per year.
The aim of integration management is to overcome the employee’s incapacity for work, to prevent future incapacity for work, and to maintain the employee’s ability to work in the long term so as to avoid dismissal of the employee on personal grounds. Company integration management consists of the employer clarifying with the works council – and, in the case of severely disabled persons, also with the representative body for severely disabled persons – the possibility of overcoming the incapacity for work as far as possible and with which benefits or assistance renewed incapacity for work can be prevented and employee’s position maintained.
All employers are covered by the scope of application of section 167 subsection 2 SGB IX, regardless of their size and the existence of a co-determination body. Operational integration management must be complied with even in small companies and within the waiting period (employment relationship not longer than 6 months) of the Dismissal Protection Act (KSchG). In principle, the CIM is mandatory for the employer. However, the consent of the employee concerned to the implementation of occupational integration management is a compulsory prerequisite. Solely if the employee refuses, it does not take place. The law places the onus of initiating CIM on the employer if the requirements of section 167 subsection 2 SGB IX are met. In practice, the employer’s “rule-compliant request ” for consent to conduct company integration management often takes the form of an official letter of invitation. In the invitation letter, the employee concerned must be informed about the collection and use of data. The employee must be informed that the CIM is voluntary. Likewise, the reference that the possibility exists of involving the persons and places specified in section 167 subsection 2 SGB IX or of refraining from it. If the employee, despite having been properly informed, does not agree to the implementation of the CIM, such a procedure will not be carried out and the employer may not in this case inform or involve the other – possible – parties involved in the procedure.
The law in its previous version conclusively regulates which places and persons the employer must involve of its own accord in this so-called operational integration management (CIM), whereby according to case law it is always a prerequisite that the employee expressly agrees to their participation. These places and persons were previously:
- the works or staff council,
- the representative body for severely disabled persons, if the employee is a severely disabled person,
- the works or company physician, if this is necessary,
- the rehabilitation agencies (section 6 SGB IX), if the matter concerns participation benefits and the employee is not a severely disabled person or a disabled person with equal status,
- the integration offices (sections 184, 185 subsection 1 SGB IX), if it is a matter of accompanying assistance in working life (section185 subsections 2 and 3 SGB IX) and the employee is a severely disabled person or a disabled person of equal status.
The law explicitly names the persons and bodies to be involved by the employer apart from the employee concerned and did not provide for the involvement of a person of trust (e.g. legal counsel). In case law, it has so far been held that the employee has no right to the involvement of a trusted third party, such as a lawyer, spouse or partner, and that the employer could refuse to involve them (cf. LAG Hamm, judgment of 13.11.2014, 15 Sa 979/14; LAG Rheinland-Pfalz, judgment of 18.12.2014, 5 Sa 518/14; LAG Köln, judgment of 23.01.2020, 7 Sa 471/19).
The involvement of a confidant was rejected in case law on the grounds that the statutory provision of section 167 subsection 2 SGB IX (old version) did not expressly regulate the involvement of a confidant and the persons and bodies to be involved were conclusively regulated by law in section 167 subsection 2 SGB IX (old version). Furthermore, the implementation of the CIM was a non-formalised procedure with the aim of determining which health restrictions had led to the previous periods of absence and to find out whether there were possibilities to overcome an existing incapacity to work and to prevent renewed incapacity to work. The discussion of legal issues is not the subject of the CIM and therefore does not require the involvement of legal counsel. No highest instance jurisprudence of the BAG on the legal question exists.
With the new version of section 167 subsection 2 sentence 2 of SGB IX, which came into force on 10.06.2021 and was passed by the Participation Strengthening Act on 02.06.2021, the employee concerned is now permitted to consult a person of trust. The person of trust can partake in all CIM discussions, can inspect the CIM documents, and has the right to speak like all other parties to the proceedings. From now on, the employer must inform the affected employee of this possibility of involving a person of trust in the CIM invitation letter. Should the notice not be included, the CIM invitation letter is legally insufficient and such a flaw leads to a defective CIM. The BAG (judgement of 10.12.2009, 2 AZR 400/08) has clarified that an inadequate CIM is equivalent to an omitted CIM. According to the case law of the BAG, the implementation of a CIM is not a formal prerequisite for the effectiveness of a dismissal due to illness, but the provision of section 167 subsection 2 SGB IX substantiates the principle of proportionality. Although the CIM itself does not constitute a milder means compared to a termination, its implementation may allow for the identification and development of gentler remedies. If, therefore, it is determined during the CIM that there are possibilities of alternative employment in the employer’s business or company through which the dismissal can be avoided, a dismissal that is nevertheless pronounced would be disproportionate and consequently legally invalid. The employer must demonstrate and prove the lack of alternative employment opportunities in dismissal protection proceedings. The employer cannot simply refer to his ignorance of alternative employment opportunities that are suitable for the suffering, but must specifically demonstrate and, if necessary, also prove their existence. An improperly conducted CIM procedure that does not meet the minimum legal requirements can lead to the procedure as a whole being disregarded. In this case and in the event that the employer has not carried out a CIM, the employer must explain on its own initiative why conceivable alternatives or alternatives pointed out by the employee to the existing employment opportunities with the prospect of a reduction in lost working hours cannot be considered.
In practice, terminations on personal grounds without a prior, properly conducted CIM fail in the vast majority of cases.
Effects on the practice
It remains to be seen what impacts the new statutory regulation of section 167 subsection 2 sentence 2 SGB IX will have in practice with regard to the involvement of a confidant in the context of the implementation of the CIM.
The provision of section 167 subsection 2 sentence 2 SGB IX grants only the affected employee the right to consult a confidant – the employer does not. This may result in at least an imbalance in the knowledge of social law regulations. In addition, it remains to be seen whether the fears of previous case law, that the implementation of the CIM will be more difficult and protracted in the future if a confidant, such as a lawyer, can be called in by the employee, will prove to be true. This was precisely what the case law wanted to avoid.
The involvement of a confidant also seems difficult to reconcile with the legal purpose of the CIM. The purpose of occupational integration management is to clarify how an inability to work can be overcome. In addition, it is to be examined which services or aids can be used to prevent renewed incapacity to work on to maintain the workplace . Hence, the issue is the health of the sick employee and the question of what options the employer has to promote the employee’s health and enable the continuation of the employment relationship, if necessary, with the help of state aid. The CIM is therefore very confidential. Its success also depends on the parties involved being able to deal with one other in a spirit of trust. It is not only the employee whose health data is at issue who has an interest in the confidentiality of the discussions, but also the employer. Under certain circumstances, confidential internal company information and business secrets may be discussed during the talks. In addition, it is unclear whether the person of trust, who usually has no medical knowledge and does not know the specific workplace and the company, can make a meaningful contribution.