The most important things at a glance:
- Termination due to illness is subject to strict requirements.
- Please note that you can generally be terminated even if you are sick.
- Against a dismissal due to illness, the so-called action for protection against dismissal is the relevant legal remedy.
Note: The term „employee“ below includes all genders (m/f/d) and is used for improved readability..
Illness-related termination: What is it about?
Termination due to illness is the most common subcategory of Termination for personal reasons dar. Every employee has surely asked themselves at least once in their life whether they should go to work despite a cold. While most people recover quickly from a short-term illness, there are those who suffer from a complex, lengthy, or even chronic illness. As if this circumstance were not psychologically burdensome enough, there is also the threat of job loss under certain circumstances. Whether and under what conditions the employer is entitled to terminate and how you, as an affected party, can defend yourself against it, is the subject of this article.
When is termination due to illness considered?
The mere fact that an employee suffers from a chronic illness or cannot perform their work for an extended period due to illness does not automatically entitle the employer to terminate employment. But first, step by step:
When you sign an employment contract, you gain certain rights and obligations. In simple terms, you provide your labor to the employer, and in return, they compensate you with remuneration. If you are unable to perform your owed work due to illness, this results in what is known as an illness-related contract disruption.
A dismissal due to illness is permissible when the employee's illness significantly impacts their ability to perform their duties, has a long-term prognosis, and there are no less drastic alternatives, such as a change of duties or a business located elsewhere, to continue the employment relationship.
Since the workplace is essential for livelihood in most cases, certain prerequisites must be met for such a dismissal due to illness to be effective. The myth that employees cannot help being ill and are therefore immune to dismissal during their illness is widespread. This is (unfortunately) not the case. Nor is it required for the employer to issue a warning first, because unlike in cases of conduct-related reasons, a breach of the employment contract is not at issue here. However, even in such a case, the employer cannot arbitrarily issue a dismissal. Rather, certain criteria must be met for it to be effective. The employer must proceed in three legally defined steps:
Creating a health prognosis (negative health prognosis)
It is necessary to predict when the employee's incapacity for work is likely to end. This is not always easy, as a precise diagnosis is not yet available at the beginning of an illness, making a reliable prognosis impossible. Furthermore, this point must clarify whether the sick employee can return to their old job after successful treatment or if they will have limitations that make this no longer possible.
The question, „When“ This can be answered as follows: The earlier it is carried out, the more accurate the result will be. According to the law, the point in time for the assessment is when the termination is also issued. The health prognosis is based on the status quo, meaning all previous sick leave absences are taken into account. Based on this data, the employer then attempts to forecast future developments.
A negative health prognosis exists whenever it can be assumed that the employee cannot be (certainly) expected to make a full recovery. In the process, the employer must present objective facts on which they base the negative health prognosis. The employee, on the other hand, must provide the court with evidence of a positive health prognosis. Expert opinions or medical documents, for example, can be submitted for this purpose. As a rule, they must indicate their previous causes of illness.
Special case: Alcohol dependence
A special case of termination due to illness is alcohol addiction. This falls under the category of personal termination because it is not controllable behavior. For a negative prognosis, it depends on whether the employee is willing to undergo therapy or submit to detoxification treatment at the time of termination. If the employee refuses, it is generally assumed that they will not overcome their alcohol addiction in the foreseeable future. The lack of willingness to undergo therapy is sufficient evidence for a negative prognosis.
Significant impairment of business interests
In the second step, the inability to work must lead to a significant impairment of the employer's operational or economic interests. It is not possible to provide a general answer as to when such a significant impairment exists; the individual case is always decisive. However, significant criteria can include: availability of personnel reserves, company size, employee's position, company structure, etc.
A significant impairment exists, for example, if the employer has to pay continued remuneration for more than 6 weeks to the employee due to repeated „short-term illnesses,“ as these additional costs affect the employer's economic interests.
Balancing of interests
Since termination represents the „sharpest sword,“ it must first be examined whether the affected employee is being considered for another position within the company as a „lesser means.“ It should be noted in particular that the employee has no claim to a higher-value position. However, if re-employment is fundamentally possible, the employer must transfer the employee or issue a so-called termination and offer of amendment instead of a termination due to illness. Only when re-employment is not possible under any conceivable circumstances is a (illness-related) termination socially justified and therefore permissible.
The so-called company integration management (Section 167, Paragraph 2 of SGB IX) is also of significant importance at this point. If the employer has neither properly carried it out nor at least offered it, they bear an increased burden of explanation and proof regarding the proportionality of the dismissal in court. In practice, due to the high demands of data protection, it is very difficult to comply with this regulation properly. Accordingly, there is a high chance that the unfair dismissal claim will be successful (see further down regarding unfair dismissal claims).
Categories of termination due to illness
The following provides an overview of the four recognized categories of cases that can justify dismissal due to illness.
Illness-related performance reduction
If the prognosis indicates that the employee's performance will permanently remain at least 1/3 below their original performance, the employer is entitled to terminate the employment relationship, provided that the continued employment of the employee in another area of the company is not possible.
Permanent disability
In this case, complete recovery of the employee is excluded, meaning they can no longer be employed in their original position. If the affected employee cannot be employed elsewhere either, then a termination due to illness is generally socially justified.
Frequent Short-Term Illnesses
In cases of illness, the employer is obligated to continue paying the employee's wages. Only from the 43rd day of incapacity for work does the health insurance fund take over the sickness benefit. If the employer is obligated to provide more than 6 weeks of continued wage payment annually, the courts assume there is an economic burden on the employer.
Prolonged illness
Such a situation exists if it lasts longer than 6 weeks but is not permanent. A long-term illness rarely leads to a socially justified termination due to illness. The reason for this is that a full recovery of the employee is generally assumed, regardless of whether the timing can be estimated or not. The court demands particular consideration from employers, especially in cases of severe misfortune, and tends to be more employee-friendly in such situations.
Extraordinary termination due to illness
An extraordinary termination is possible under certain circumstances, even though ordinary termination is the usual procedure in cases of illness. However, if the employee is permanently unimployable due to illness or if continued employment is unreasonable for the employer due to the illness, an extraordinary termination may be considered in exceptional cases. The reasons for the illness must be so severe that the employer receives practically no significant consideration from the employee („emptying the employment relationship of its meaning“). The legal basis for this is § 626 BGB. However, even with an extraordinary termination, the employer must observe a notice period. This so-called social grace period must be as long as the notice period the employer would have had to observe if the employee could have been terminated ordinarily.
Protection against termination due to illness
If your employer terminated you due to illness, you can the so-called Unfair dismissal lawsuit You must absolutely observe a deadline of 3 weeks from receipt of the termination for this, as otherwise the termination, regardless of its content, will be considered effective (§7 KSchG).
Are you currently facing a situation where you are about to be terminated due to illness? If so, prompt action is often crucial for cost savings and a favorable outcome in the process. If you have questions and would like legal advice, do not hesitate to contact us. Our team consists of lawyers specializing in labor law, who take a lot of time for you and develop optimal strategies for action together with you, so that your interests can be best advanced.