Can you get fired out of sick leave?

Can an employee be dismissed ("fired") under German labour law simply because they have been absent for a long period due to illness? To answer this question, we need to look at the system governing the termination of an employment relationship by the employer in Germany:

I.

Basic rules for terminating an employment relationship in Germany:

In a permanent employment relationship in Germany, the employer can only terminate the employment relationship under certain conditions – in particular, if the Dismissal Protection Act (Kündigungsschutzgesetz: KSchG) applies (i.e., in companies with more than 10 full-time employees and after 6 months of service). The reasons for this are narrowly defined. The KSchG distinguishes between three groups of legally permissible main reasons for termination:

1. Termination for conduct-related reasons (German: „verhaltensbedingte Kündigung“)

The employee culpably violates their obligations under their employment contract.

Examples:

• Repeated unexcused absences

• Refusal to work

• Constant tardiness

• Insulting superiors or colleagues

• Theft or embezzlement (even of low-value items)Important: As a rule, at least one warning („Abmahnung“) is required before dismissal for conduct-related reasons.

2. Dismissal for operational reasons (German: „betriebsbedingte Kündigung“)

The job is eliminated due to business decisions or economic reasons.

Examples:

• Decline in orders/decline in sales

• Closure of a department or location

• Outsourcing of activities

• Introduction of new technologies that replace jobs

Requirements:

Urgent operational need + No other vacant positions + Social selection must be carried out correctly (age, length of service, maintenance obligations, severe disability, etc.) and the employer has to prove this.

3. Termination for personal reasons (German: „personenbedingte Kündigung“)

The employee can no longer fulfill their contractual obligations for reasons related to their person, through no fault of their own.

Examples:

• Long-term or frequent illness (→ termination due to illness)

• Withdrawal of driving license (for drivers)

• Loss of work permit

• Lack of professional competence (e.g., serious performance deficiencies discovered after the fact)

Important: There must be a negative prognosis, and the employer must check whether continued employment is possible, e.g., in another position.

Special protection against dismissal (Kündigungsschutz):

Also, some reasons are not permissible—termination would be unlawful in these cases:

• Pregnancy (special protection against dismissal, §17 MuSchuG - Mutterschutzgesetz)

• Parental leave (§ 18 BEEG - Elternzeitgesetz)

• Membership in a union or works council ("Betriebsrat" / "Personalrat")

• Illness itself (without a negative prognosis)

• Assertion of rights (e.g., vacation, minimum wage, working hours law)

• Severely disabled people (only with the consent of the integration office)

• Trainees (after probationary period, dismissal only possible in exceptional cases)

• Persons on care leave or military service („Wehrdienst“ - voluntarily or comparable services. Note: Compulsory military service was suspended in Germany in 2011, not abolished.)

II.

Termination due to employee illness

So what happens if I have a permanent employment contract but am ill for a long period of time or frequently and my employer terminates my contract?

Termination due to illness is a special form of termination for personal reasons under German labour law and is only permissible under strict legal conditions and after careful examination of each individual case, as stated above.

Requirements for dismissal on grounds of illness:

Termination due to illness is a form of termination for personal reasons under Section 1 of the German Unfair Dismissal Protection Act (KSchG). The Federal Labor Court (BAG) has developed a three-step assessment structure for this:

1. Negative health prognosis

It must be foreseeable that the employee will continue to be absent due to illness in the future.

Is it a long-term illness? - If the employee has been ill continuously for more than 6 months, a negative prognosis may exist.

Are there frequent short-term illnesses? - If the employee has had many absences due to illness over several years, this may also be sufficient – but only if these are also to be expected in the future.

• A medical assessment or a corresponding medical history must be existent.

2. Significant impairment of operational interests

The absences must actually impact operations.

• e.g., disruption of operational processes, high replacement costs, loss of productivity, overload of colleagues

• It is not enough for the employee to be “only” absent—the effects must be serious for the employer in economic or organizational terms.

3. Balancing of interests

A balancing of interests must show that continued employment is no longer reasonable for the employer. Many factors are taken into account here: for example length of service, age, maintenance obligations, previous behaviour, frequency and severity of illnesses, size of the company, etc.

Also to be taken into account: Has the employer done everything reasonable to avoid termination?

4. Further mandatory steps prior to termination:

The employee must also be offered a company integration management program (BEM, Section 167 (2) SGB IX) if the employee has been ill for more than 6 weeks (consecutively or repeatedly) within the last 12 months. The employer is obliged to offer this, but the employee is not obliged to participate. -> see my article upon this topic.

If there is a works council, it must also be consulted before any termination, § 102 BetrVG (Works Constitution Act). It has no right of veto, but must be consulted. Without consultation, the termination is automatically invalid. As always, the notice periods specified in the employment contract, § 622 BGB (German Civil Code), must of course be observed.

Conclusion:

Under German labour law, there is no “special right of termination” due to illness. Termination of a permanent employment relationship is subject to strict conditions. Dismissal on grounds of illness is possible in principle, but only permissible under very strict conditions. Since illness does not initially constitute a “misstep” on the part of the employee, protection against dismissal is particularly strong in this case. If you want to dismiss a permanent employee on grounds of illness, you must comply with certain legal steps and requirements.

Certain groups of people who are already vulnerable, such as people with severe disabilities (here, the approval of the Integration Office is required, Section 168 SGB IX), people on maternity leave/parental leave (Section 17 MuSchG, Section 18 BEEG), and collective agreements, enjoy special protection against dismissal.

This being said results in the following checklist, which must be observed before giving notice of termination due to illness:

-Has a negative health prognosis been made?

-Has the impairment to the business been documented?

-Has a careful weighing of interests been carried out?

-Has BEM been properly offered and, if necessary, carried out?

-Has the works council been properly consulted?

-Has the notice period been observed?

-Is there no special protection against dismissal?

From my legal practice, I can only recommend entering into discussions on an equal footing. Mediation, in which employees and employers come together in a moderated setting to reach a compromise saves time, money, and ultimately your nerves.

I publish interesting questions about German employment law judgements on this blog regularly. If you need special advice tailored upon your individual case, don't hesitate to get in contact with me.

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