Is dismissal due to illness possible?
Yes, dismissal due to illness is possible, but subject to strict legal requirements (see next chapter). A company may only terminate an employment relationship if certain conditions are met. This also applies during sick leave.
Legal background: The main contractual obligation of an employee is to be productive in the interests of the company. In return, you receive a salary. Even if an employee cannot usually be held responsible for his/her inability to work, frequent or long periods of illness can place a considerable burden on a company.
In practice, dismissals due to illness are rare. Because the legal hurdles are particularly high, employees have a good chance of defending themselves by taking legal action against dismissal and obtaining reinstatement or severance pay.
Important: Anyone who is dismissed has only three weeks to file a lawsuit. Once the deadline has expired, the termination is effective in any case and can no longer be challenged.
3 conditions for a lawful termination due to illness
Employees who have been employed for more than six months in a company with more than 10 employees are automatically subject to statutory protection against dismissal. In this case, all three of the following points must be met for the termination to be rightful. Otherwise, the termination is contestable.
1. Significant impairment of the employer's interests
The employee's illness must significantly impair the company's operational or economic interests. This is the case if e.g. the operational process is disrupted by the employee's illness, which results in a sales decrease or additional personnel costs.
2. Negative health prognosis
At the time of termination, it must be assumed that there will be no improvement and that the employee will continue to be ill for a long time or frequently in the future.
The company must prove that its interest (termination of the ill employee) outweighs the employee's interest (continued employment) and that continued employment is unreasonable.
What rules apply in small businesses and during probation?
The probation period and small businesses with fewer than 10 employees are special cases of labor law: Namely, in both cases there is no legal protection against dismissal for employees.
In both cases a dismissal is possible at any time without naming reasons. That is why employers do not have to take into account the requirements for an effective termination due to illness.
Anyone who is dismissed due to illness is fully entitled to unemployment benefits. Only employees who give notice themselves or sign a termination agreement may receive a block of up to 12 weeks. In this case, the employment agency does not transfer the benefit until the blocking period has expired.
The block may be waived in individual cases if the employee had serious reasons for the termination. It is advisable to discuss possible consequences directly with the employment agency in advance.
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