In a ruling on October, 8 2020, the State Labor Court Nuremberg denied the employee’s claim of entitlement to operational integration management (Ref.: 5 Sa 117/20). Accordingly, only the responsible employee representations have the right of initiative. However, the decision is not yet legally binding, and an appeal has been submitted to the Federal Labor Court (Ref.: 9 AZR 572/20).
In a ruling on October, 8 2020, the State Labor Court Nuremberg denied the employee’s claim of entitlement to operational integration management (Ref.: 5 Sa 117/20). Accordingly, only the responsible employee representations have the right of initiative. However, the decision is not yet legally binding, and an appeal has been submitted to the Federal Labor Court (Ref.: 9 AZR 572/20).
The plaintiff in the underlying case was employed by the defendant community as a laborer. He was recently deployed at the community’s own camping grounds. The plaintiff has a certified disability level of 30, and has been granted equalization with a severely disabled person.
Due to illness, he was unable to work for a total of 122 days in 2018, and in 2019, 86 days from January to August alone. He applied for operational integration management (BEM).
The employer denied the operational integration management
The application was denied with the justification that the employee had already been absent for long periods of time in the previous years. The transfer to the community’s own camping grounds and swimming lakes essentially represented integration management. This was the community’s argument. The further illnesses that occurred were in no way directly related to the activities that the employee had to perform as part of their work.
In response, the employee sued for operational integration management in court. Although they were successful in the first instance, the State Labor Court Nuremberg then denied the claim during the appeal proceedings. The court determined that the obligation of the employer when the prerequisites for operational integration management exist do not represent an actionable claim on the part of the employee.
The State Labor Court Nuremberg dismissed the case
According to the court, the claim asserted by the plaintiff is not directly derived from Section 167 (2) of the Social Insurance Code (SGB IX). This provision pertains to the employer and obliges the employer to perform operational integration management with the responsible employee representation and the affected person. However, an explicit entitlement on the part of the employer to operational integration management was not expressed here. The employee representation mentioned in the law is a different case. It is explicitly granted an actionable individual right in Section 167 (2) sentence 6 of the Social Insurance Code (SGB IX) as the court explained. Furthermore, the employee representation also has a monitoring function. If the legislator had wanted to award the employee an actionable claim, it would have been able to state this explicitly, continued the State Labor Court Nuremberg.
Claim not actionable
An actionable claim is not derived from the obligation to respect rights and interests as per Section 241 (2) of the German Civil Code (BGB). The court further clarified that although the contract parties could be obliged to measures to safeguard performance as part of the employment relationship, an actionable right to operational integration management does not arise from this. Even if the employer takes no action, the employee is already adequately protected due to the principle of proportionality.
However, other courts such as the State Labor Court Hamm have also made different decisions. They assume an actionable claim to operational integration management. The German Federal Labor Court will have to decide this issue in the highest court.