Termination due to illness in Germany: When is it (un)lawful?

  • 3 prerequisites must be met for terminations due to illness to be lawful: a negative health prognosis, damage on the part of the employer, and a careful consideration of employee and employer interests.
  • Integration management usually needs to be carried out by the employer before a termination.
  • You can take successful action against your termination or receive a severance payment if your termination does not meet factual or formal standards.

What are requirements for terminations due to illness?

Employers may only dismiss employees for certain socially justified reasons if they are under protection against dismissal (§ 1 KSchG). In this context, illness may represent a justifiable reason. However, in order for a termination due to illness to be legally permissible, employers must comply with the following three requirements.

1. Negative health prognosis

In the event of a negative health prognosis, further, future illnesses of the same extent as before are to be expected at the time of termination. In practice, a distinction is made between 4 cases that must be considered separately:

» It is often difficult for laypersons to determine whether all conditions for termination due to illness are met. It is therefore advisable to seek professional help and have your dismissal checked in detail.

Terminated due to illness?
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2. Considerable damage to the employer

The expected absence from work leads to a considerable impairment of business operations or to economic losses for the employer. This involves for example the following cases:

  • future loss of revenue,
  • significant burden from continued wage payments (for 45 to 60 sick days per year),
  • future additional labour costs,
  • future regular training of temporary staff or
  • disturbance of the peace of the company through constant increase in the workload of other employees.

3. Weighing of interests

Here it must be examined whether the employer can no longer reasonably be expected to tolerate the impairment. For this, two conditions must be examined:

  • There is no other way than to remedy the employer's damage by terminating the employment.
  • The damage to the employer is greater than the employee's interest in continuing the employment.

Other means than termination

Continued employment is considered reasonable if there are measures other than termination by which damage to the employer can be remedied. Those remedies may involve

  • the creation of an adequate workplace
  • changes of the job specifications or
  • a transfer to a suitable position.

In order to evaluate potential measures, employers are obliged in practice to carry out an integration management.

Interest of the employee

The level of the employee's interest in continuing employment depends on the potential damage caused by the loss of the job. Various social criteria must be taken into account, such as

  • age,
  • seniority,
  • alimony obligations,
  • health condition or
  • chances to find a new job on the labour market.

Further requirements for lawful dismissals

Apart from meeting the 3 requirements for terminations due to illness, employers must meet further standards for lawful termination. These include in particular

  • compliance with formal requirements for the notice: adequate notice period, sufficient justification and written form,

  • if applicable, compliance with the special protection against dismissal for special groups of employees: persons in voluntary military service, pregnant women up to 4 months after giving birth, employees on parental leave, parents on part-time work within the first 14 months of the child's life, severely disabled persons, employees on nursing leave or temporarily unable to work due to an acute nursing situation or members of the works council, and

  • if applicable, consultation of the works council.

» Find out if you have been terminated wrongfully & subject your termination to our free and non-binding initial check. Start your check now.

What is integration management & why is it required?

Although employers are not obliged to integration management, it is practically impossible to get around. Without integration management, it is hardly possible to sufficiently prove that there are no other measures than termination.

Implementation

If an employee is incapacitated for more than six weeks continuously or repeatedly within a year, the employer must offer the sick employee integration management. If the employee agrees, the two must evaluate together,

  • how to overcome the incapacity for work or
  • how renewed incapacity can be prevented

in order to continue the employment.

Measures

In the process, measures to be implemented are worked out, which are then documented in an official declaration. Such measures concern, for example

  • work tasks,
  • work processes,
  • working hours,
  • working environment or
  • workplace.

Severance pay & continued employment: How can terminations be contested?

Employers have to comply with strict regulations in order to be permitted to dismiss employees due to illness. This is why terminations are often unlawful. In the case of wrongful termination, you can challenge the termination and receive either severance pay or continue the employment. Your prospects depend on your individual circumstances. It is therefore advisable to seek professional support examining your termination.

3-week period for appeal

To contest your termination, you must file an action for protection against dismissal with the labour court within 3 weeks of receiving the notice. If you fail to do so, even unjustified termination will be considered effective. So should act quickly after your termination.

Terminated due to illness?
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Caution with termination agreements

Some employers also try to negotiate a termination agreement with the employee to avoid dismissal protection cases. With a termination agreement, you agree with your employer to terminate the employment amicably. This can have detrimental effects for you.

Disadvantages of termination agreements

For one thing, the employment office could assume that you have voluntarily given up your job and put a stop on your unemployment benefits. In addition, you could be left with less severance pay than you could have received.

» So don't be tempted by quick severance payments and don't sign a termination agreement immediately. Ensure your interests are properly protected & subject your cases to our free and non-binding initial check. Start your check now.