Termination due to illness
Dismissal on health grounds – your rights as an employee in Augsburg
Being dismissed on grounds of ill health is particularly hard on employees who are already in a difficult situation. The good news is that dismissals on grounds of ill health are subject to very strict conditions and are often invalid in practice. If even one of the three stages of assessment is missing, the dismissal will not stand up in the employment tribunal. Our specialist employment lawyers in Augsburg will review your dismissal and ensure your rights are upheld.
The three stages of review for dismissal on health grounds
Dismissal on grounds of illness is a specific type of dismissal for personal reasons under Section 1 of the German Employment Protection Act (KSchG). It is not the illness itself that constitutes grounds for dismissal, but rather its impact on the employment relationship. The Federal Labour Court requires the employer to demonstrate three stages – if any one of these is missing, the dismissal is invalid.
Stage 1: Negative health prognosis. At the time of dismissal, there must be objective facts indicating that further significant absences are to be expected. Past sick days alone are not sufficient – the employer must justify why comparable absences are also to be expected in the future.
Stage 2: Significant impairment of operational interests. The absences must specifically disrupt business operations or lead to significant financial burdens – for example, through continued pay costs exceeding six weeks per year over several years, or through irreplaceable production losses.
Stage 3: Balancing of interests. Even if the first two stages are met, the employer’s interest in terminating the employment must outweigh the employee’s interest in retaining their job. Length of service, age, maintenance obligations and the cause of the illness all play a role in this.
BEM errors – why most dismissals fail
Before an employer is permitted to dismiss an employee on health grounds, they must carry out a Workplace Integration Management (BEM) process in accordance with Section 167(2) of SGB IX. The BEM is mandatory as soon as an employee has been unable to work for more than six weeks (42 calendar days) within a twelve-month period – whether this is in one go or in several separate periods.
Without a properly conducted BEM, dismissals on health grounds almost always fail in the employment tribunal. The employer must then prove that even a BEM would not have resulted in any less severe measures – a burden of proof that is rarely met in practice. Typical BEM errors include: a missing or inadequate invitation, a lack of information regarding objectives and data protection, implementation without the works council or the representative for severely disabled employees, or a purely formal meeting without a genuine examination of alternatives such as workplace adjustments, redeployment or retraining.
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Please answer a few short questions about your dismissal on health grounds. The assessment will show you whether the employer has made any typical mistakes and what your chances are.
Frequent short-term illnesses vs. long-term illness
Case law distinguishes between two main scenarios involving dismissal on health grounds, each of which imposes different requirements on the employer.
Common short-term illnesses
In the case of repeated short-term absences (e.g. several times a year for a few days), the employer must provide evidence of a negative prognosis for the future. Absences over the last three years serve as an indication – if these amounted to more than six weeks per year, this initially suggests a negative prognosis. However, the employee can challenge this prognosis, for example by providing medical certificates or evidence that the causes have been resolved (e.g. surgery completed, changed circumstances).
Long-term illness and permanent incapacity
In the case of an uninterrupted long-term illness, the employer must prove that recovery is not to be expected within the next 24 months. If, at the time of dismissal, it is clear that the employee is permanently unable to work, there is no need to weigh up the interests involved – the dismissal is then generally justified. In all other cases, the prognosis remains uncertain and is therefore open to challenge. Particularly in the case of mental health conditions, the prognosis is often difficult to determine.
Action for unfair dismissal and severance pay in the event of dismissal on health grounds
Dismissals on health grounds often stand a good chance in the employment tribunal – the hurdles for the employer are high, and mistakes are frequently made in the BEM process or in the prognosis. The three-week time limit for bringing a claim under Section 4 of the Employment Protection Act (KSchG) also applies here.
chances of success
In our practice in Augsburg, we find that the majority of dismissals on health grounds are open to challenge – particularly where a proper return-to-work plan has not been implemented, the prognosis is based on outdated or insufficient data, or the balancing of interests does not take sufficient account of the employee’s interests. Many cases are settled with a compromise and a severance payment.
Special features: Sick pay and unemployment benefit
If you are made redundant whilst receiving sick pay, your sick pay does not automatically stop – it continues for as long as you are unable to work (up to a maximum of 78 weeks). Once your sick pay has ended, you can apply for unemployment benefit. Redundancy due to illness is not usually subject to a waiting period for unemployment benefit, as you did not bring about the redundancy yourself.
Frequently asked questions about dismissal on health grounds
Further information on employment law
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This information does not constitute legal advice in individual cases.
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