Year after year, burn-outs cost the economy billions – and its an upwards trend. In order to recognise the risks in good time and to fully re-integrate sick employees, companies are therefore giving this topic high priority. At the operational level, in particular, interesting questions arise: How do you determine the degree of mental strain at a workplace? What are the duties of the company and the rights of the works council regarding preventative measures and the return of employees to their workplaces?
The last question has been highlighted by a judgement of the Federal Labour Court [Bundesarbeitsgericht, BAG] dated 7 February 2012 (1 ABR 46/10). It ruled that, within the scope of the integration management programme that is to be conducted by the company, the works council was entitled to be notified of the names of the employees concerned. The Federal Labour Court therewith made it possible for works councils to counter terminations declared by employers on grounds of an employee's illness at an earlier stage than was previously the case. In future, companies will be expected to make even greater efforts to create new jobs for employees suffering from burn-out – for many such employees, a return to their previous job is not possible.
By law, employers are obliged to examine whether an integration management programme should be conducted for employees who are unable to work for more than six weeks during a year. The proceedings clarify how the employee's inability to work can best be overcome and his job retained. In an earlier decision, the Federal Labour Court established that the conducting of an integration management programme is not a prerequisite for a termination. However, the employer must represent why, amongst other things, the sick employee's job cannot be adapted and changed to allow for his incapacity.
With the present judgement, the Federal Labour Court is bringing companies into a situation in which they must internally justify their actions concerning the treatment of sick employees to the works council at an earlier stage. In future, works council will increasingly demand within the framework of shop agreements that integration management programmes, in addition to containing mere procedural provisions, should also provide for a change in jobs with paid training for employees returning to the company.
Employers are already obliged to collaborate with the works councils with respect to the prevention of illness. The German Shop Constitution Act [Betriebsverfassungsgesetz, BetrVG] provides works councils inter alia with a right to initiate, together with the employer, an analysis of the specific – also mental – health risks existing for the workforce. Within the scope of this risk assessment, the works council can retain the services of experts at the employer's expense, since it frequently lacks the required occupational medical expertise itself. Training measures on burn-out provided for by the employer as a preventative measure, being an organisational measure pursuant to industrial safety regulations, also affect the codetermination and information rights of the works council. In corporate practice, however, the decisive role in prevention is played by the industrial safety committees and works doctors.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.