Yesterday, the Federal Labor Court had to deal with the exciting question of whether and when an employer may request an employee to attend an interview in the event of illness (BAG judgment of 02.11.2016 – 10 AZR 596/15).
The result: If the employee is on sick leave, they only have to appear in person for an appraisal interview in exceptional cases.
In principle, there is no obligation to come to the appraisal interview
A hospital employee was on sick leave for an extended period of time.
His employer wanted to invite him to the workplace for a meeting to discuss how they could work together in the future.
The employer called the employee three times for an appraisal interview.
The employee did not show up, claiming that he was not obliged to come to work during his sick leave – not even for an appraisal interview.
The BAG ruled in favor of the employee.
The principle that employees do not have to fulfill their work obligations during their incapacity to work applies.
The obligation to work is suspended.
Taking part in a staff appraisal is part of the work duties in the broadest sense.
Only in exceptional cases is a personal interview possible despite illness
Only operational interests may, in exceptional cases, make it essential for the employee to appear at work.
In such a case, the employer can demand that the employee attends the performance review.
The reasons for this are not yet clear from the BAG’s press release.
In any case, “indispensable” seems to be a relatively high hurdle in this context.
Another prerequisite is that the employee is in good health (despite illness) and able to attend work.
Telephone and written arrangements also possible in case of illness
However, employees cannot completely evade the employer’s access during illness.
The BAG clarifies that the employer certainly has the option of contacting the employee despite being unable to work if there is a legitimate interest in doing so.
In order to have a certain degree of planning options, the employee will probably have a legitimate interest in contacting an employee who is ill for a longer period of time.
According to the court, it remains possible that a telephone call is made or specific questions are answered in writing.
Consequences for operational integration management
Following the decision, it remains interesting to see how a company integration management program (BEM) can be implemented with an employee who has been unfit for work for an extended period of time.
A BEM – similar to the situation in the BAG case – serves to jointly look for ways in which the employment relationship or the workplace must be organized after the employee’s return in order to continue working together.
The BEM is very important in practice.
Without a BEM, it is almost impossible to declare an effective dismissal due to illness because the burden of proof in the process shifts considerably to the disadvantage of the dismissing employer.
But what if an employee repeatedly evades a BEM by invoking their inability to work?
No clear rules for BEM
There are no clear rules as to when the employer can consider the BEM to have failed in such a situation.
A BEM does not have to comply with any fixed formal requirements and can certainly also be carried out by telephone or even in writing.
These options remain expressly open to the employer even after the current BAG ruling.
However, whether a constructive discussion between employer and employee about further cooperation is possible with a telephone call or correspondence will depend heavily on the respective protagonists and their relationship with each other.
If the atmosphere between the parties involved is chilly, a personal meeting, possibly prepared with professional support, would often be the better choice.
Otherwise, there is a risk that the BEM will be seen as a necessary evil that has to be carried out before a dismissal is announced – and not as a useful HR tool.
In any case, it has been clear since yesterday that the face-to-face meeting cannot be enforced.