Dismissal Risk from bEM Errors: Higher Labour Court of Baden-Württemberg Requires an Express Reference to the Company Doctor's Duty of Confidentiality

A fairly recent judgment of the Higher Labour Court (Landesarbeitsgericht, LAG) of Baden-Württemberg of 14 January 2026 (case no. 4 Sa 39/25) considerably tightens the formal requirements for workplace reintegration management (betriebliches Eingliederungsmanagement, bEM). In the case decided, a dismissal on grounds of illness failed – despite the employee's massive absences – because the preceding search process had been conducted incorrectly. In the invitation and the initial meeting, the employer omitted to expressly inform the employee of the company doctor's statutory duty of confidentiality. The court regarded this omission as a fatal defect, since precisely where an employee is reluctant to disclose his or her own diagnoses, the neutral and confidential position of the physician is meant to create an essential basis of trust.

If this formal requirement is disregarded, employers regularly can no longer prove in subsequent unfair dismissal proceedings that an adjustment of the workplace suited to the employee's condition would have been impossible. The law requires a complete and open-ended clarification process exhausting all prescribed bodies. Merely offering to coordinate the involvement of the company doctor in the meeting is legally insufficient without the explicit reference to his or her confidentiality. The incomplete information leads, in the court's balancing of interests, to disproportionality and thus to the invalidity of the entire dismissal. For companies, this creates immense economic risks through back pay for default of acceptance (Annahmeverzugslohn).

Managing directors and HR managers should have bEM invitations and meeting minutes reviewed legally without delay and anchor the reference to the physician's duty of confidentiality as a fixed mandatory component.