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
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
April 2015 saw the reshaping of family-friendly leave with the birth of Shared Parental Leave (SPL). Can employers offer enhanced contractual pay to mothers/primary adopters but not to fathers/partners?
In an eagerly awaited decision, the Court of Appeal ruled earlier today that creditors cannot access a bankrupt's pension benefits which have not come in payment.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).