There is no regulation that prohibits dismissal during sick leave. The widespread belief that one cannot be dismissed while on sick leave is the most costly misconception in German labor law, because it causes those affected to miss the three-week deadline for filing a claim for unfair dismissal. After this period expires, even an obviously unlawful dismissal is considered valid.
Two points make the situation more favorable than it initially appears. First, the timing of a dismissal says nothing about its reason, which is why it matters whether the dismissal occurred during or because of the illness. Second, sick leave can extend your entitlement to wages: If the employer terminates your employment due to your incapacity for work, continued payment of wages continues beyond the end of the employment relationship.
We are Smart Employment Law, a law firm with two offices in Hamburg specializing exclusively in employment law. We advise and represent employees, employers, and works councils. Because we understand dismissals from both perspectives, we can quickly determine whether a dismissal during sick leave was properly prepared or whether the employer made mistakes that can now benefit you.
The good news lies in this distinction. A doctor's note doesn't prevent dismissal, but it often makes it vulnerable to challenge. And in many cases, your entitlement to wages even extends beyond the termination of your employment.
The most important information at a glance
- No ban on dismissals: There is no regulation that prohibits termination of employment during a period of incapacity for work. The decisive factor is not the timing, but the reason for termination.
- During or because of: A dismissal during illness is different from a dismissal because of illness. Only the latter faces significant hurdles.
- Salary payments can continue: If the employer terminates the employment relationship due to incapacity for work, the continued payment of wages in accordance with Section 8 EFZG remains in effect until the end of the six-week period, even beyond the end of the contract.
- Three weeks: The deadline for filing a claim for protection against unfair dismissal continues despite illness. It begins when the dismissal notice is received, not when you recover.
- Special protection: Pregnancy, parental leave, severe disability and a works council mandate provide protection regardless of the illness.
- Points of attack: Lack of consultation with the works council, lack of reintegration management, incorrect social selection and formal errors regularly render dismissals ineffective.
Why sick leave doesn't protect you
The misunderstanding arises from a confusion. There are genuine prohibitions against dismissal, for example during pregnancy or parental leave. No comparable protection exists for incapacity for work. The legislature deliberately refrained from including such protection because otherwise every dismissal could be blocked by a sick note.
What applies to you depends on the general rules. If your employer regularly employs more than ten employees and your employment has lasted longer than six months, the Protection Against Unfair Dismissal Act applies. In this case, the dismissal requires a reason related to the company's operations, employee conduct, or the employee's person. We have explained the specific requirements in our guide on [topic missing]. Protection against dismissal in employment relationships compiled.
In a small business or during the first six months of employment, the employer does not need a reason for dismissal. However, even there, dismissal is not arbitrary: it must not be immoral, discriminatory, or contrary to good faith, and the prohibition against retaliation also applies. Anyone who receives a dismissal notice immediately after claiming continued payment of wages should have this connection thoroughly examined.
During illness or because of illness: the crucial difference
For your chances of success, one distinction is crucial. The timing of the termination says nothing about its reason. If your job is eliminated while you are ill, that's one thing. dismissal for operational reasons and has nothing to do with your illness. However, if the employer bases the dismissal on your absences, it is a dismissal due to illness, and the hurdles are high.
Dismissal for operational reasons
Here, the courts examine whether the need for your employment has permanently ceased, whether alternative employment would be possible, and whether the social selection process was correct. The social selection process is the most frequent error. Factors that must be considered include length of service, age, maintenance obligations, and severe disability. Your illness itself must not be used against you in this process.
Dismissal for behavioral reasons
The illness itself is not a breach of duty and can be a dismissal for misconduct This does not justify the absence. The situation is different if you violate your notification or documentation obligations, i.e., if you fail to report your incapacity for work immediately or do not submit the certificate in a timely manner. In such cases, a [missing word - likely "incapacity for work"] is usually required first. Warning letter in employment law necessary before termination is permitted.
Dismissal due to illness
If an employee is dismissed due to illness, labor courts examine three stages: a negative health prognosis for the future, a significant impairment of company interests, and a balancing of interests in the individual case. In cases of frequent short-term illnesses, the courts use absences of more than six weeks per year over a period of approximately three years as a guideline. A single long year of illness is rarely sufficient.
The most important point of attack lies before this. Anyone who has been unable to work for more than six weeks within a year is entitled to workplace reintegration management. If the employer fails to implement this process, even though obligated to do so, they must demonstrate in court that no less drastic measure was available. They often fail to do so, and the dismissal is then unsuccessful.
Your money: continued payment of wages, dismissal for cause and sick pay
Most advice guides overlook this part, even though it directly affects your account. Generally, the employer continues to pay wages for up to six weeks, and this entitlement ends with the termination of the employment relationship. Section 8, paragraph 1 of the German Continued Payment of Wages Act (EFZG) makes an exception: If the employer terminates the employment due to the employee's incapacity for work, the obligation to pay wages remains in effect until the end of the six weeks, even if the employment relationship ends earlier.
"Due to cause" means that the employee's incapacity for work was the decisive impetus for the decision to terminate the employment. It does not have to be the sole reason. You must prove this connection, but a prima facie case can help: If the termination is closely related in time to the sick leave, this, according to case law, suggests a termination due to cause. The employer must then demonstrate that they had already intended to terminate the employment for other reasons beforehand.
An example illustrates the point. You report sick on the 5th of a month, your notice of termination is received on the 8th, and you remain continuously unable to work. If your employment ends on the 30th, your continued payment of wages would cease on that day without the provisions of Section 8 of the Continued Payment of Wages Act (EFZG). However, if the termination is due to a specific reason, the employer continues to pay your wages until the end of the sixth week of illness. With a gross monthly salary of €3,500, this amounts to approximately €2,000 that would otherwise be lost as reduced sick pay.
Therefore, make a precise note of when you reported your incapacity for work, when the certificate was received, and when the notice of termination was served. These three dates determine several weeks' wages.
After your sick pay ends, your health insurance company takes over with sick pay. Submit all subsequent certificates of incapacity for work to your insurance company promptly and without gaps, as any lapse in coverage could jeopardize your entitlement. If you are still unable to work when you become unemployed, you should still register with the employment agency. Through the so-called seamless transition rule, unemployment benefits can be paid even if your ability to work is expected to remain impaired for an extended period.
Those who still have special protection
Regardless of the illness, genuine prohibitions against dismissal apply. During pregnancy and parental leave, dismissal is only possible with official approval; further details can be found in the guide on [topic missing]. Protection against dismissal during pregnancy and parental leave. In cases of officially recognized severe disability, the inclusion office must give its prior approval, which many employers overlook if the disability has not been openly communicated. We have the details [from the relevant department/organization]. Protection against dismissal for severely disabled employees described.
Other cases: Works council members are practically unfireable, trainees enjoy special protection after their probationary period, and employees on leave for caregiving or family care are also protected. If a works council existed, it must be consulted before any dismissal. A dismissal issued without proper consultation is invalid, and this mistake happens more often than one might think.
Small business, probationary period and fixed-term contract
Three situations regularly lead to inquiries. During the probationary period, specifically the first six months of employment, the German Protection Against Unfair Dismissal Act (Kündigungsschutzgesetz) does not yet apply. The employer can then terminate the employment without giving a reason, usually with a notice period of two weeks. Sick leave does not change this. Such a dismissal remains contestable if it is discriminatory or was solely a reaction to the sick leave.
The same applies permanently to small businesses with typically up to ten employees. However, the prohibition of discrimination, the General Equal Treatment Act, and special protection against dismissal also remain applicable here. In the case of a fixed-term contract, it must also be checked whether ordinary termination has been agreed upon, because without such a provision, the contract can only be terminated for cause before the end of the fixed term.
In all three cases, it is worth considering the number of employees and the exact date of receipt. If the dismissal notice is only effectively served after the six-month waiting period, full protection against dismissal applies, and the requirements for the employer increase considerably.
The three weeks also run while in a hospital bed.
The most important practical rule is: After receiving your notice of termination, you have three weeks to file a claim for unfair dismissal. After that, the termination is considered valid, even if it was clearly unlawful. We explain how the process works and what it costs on our page about... Unfair dismissal claim before the labor court.
Illness does not extend this deadline. Receipt means that the letter has reached your mailbox, even if you are in bed or in the hospital. Late admission of the lawsuit is only possible in very limited exceptional cases, such as an illness that has completely eliminated your ability to act. Ordinary incapacity for work is not sufficient, as you can still make phone calls and consult a lawyer.
Practical tip: Check your mailbox regularly while on sick leave and note the date you collect the mail. If you don't check your mail for two weeks, you'll lose that time without compensation.
If the employer challenges the evidentiary value of the certificate
A doctor's certificate of incapacity for work carries significant evidentiary weight. However, the employer can challenge its validity by presenting specific circumstances that raise serious doubts. Case law has recognized this, for example, when the certificate covers the exact period until the end of the employment relationship and was issued immediately after the dismissal.
If the evidence is challenged, you must present specific details in court regarding your symptoms, the resulting limitations, and the treatment provided. This usually involves releasing your treating physician from their duty of confidentiality. Keep all medical reports, prescriptions, and appointment records together. This question generally does not arise if the illness continues beyond the termination date.
Here's what you should do now, in this order
- Document access: Note the date and time of removal from the mailbox, and keep the envelope.
- Do not sign anything: No confirmation of receipt with additions, no cancellation agreement, no settlement receipt.
- Continue sick leave: Continue to submit follow-up certificates to the employer and the health insurance company, without gaps.
- Deadline in the calendar: Enter three weeks from access and start the exam well before then.
- Report to the agency: Register as a job seeker, even during periods of incapacity for work.
- Collect documents: Employment contract, termination notices, sick leave notifications, correspondence, names of colleagues in comparable positions.
Also, consider two points that are often overlooked in this situation. Any remaining vacation days that could not be taken due to illness must be compensated financially upon termination of employment. And you are entitled to a letter of reference that does not mention the illness, as long as it does not affect the overall validity of the reference. Both of these points should be included when discussing a settlement.
A note on expectations: The goal of an unfair dismissal claim is not always a return to the workplace. Often, the proceedings end with a settlement and a payment. You can read about what is realistic in the guide to... Severance pay upon termination.
Typical employer mistakes that can help you
Terminations during sick leave often occur under time pressure, for example, because the HR department has to cover the absence. This is precisely when mistakes happen. These are the five we see most frequently.
- Lack of works council consultation: The works council was not informed, or not fully informed. This renders the dismissal invalid, regardless of the reason for termination.
- No integration management: The procedure is missing if there are more than six weeks of downtime per year, even though it was mandatory.
- Faulty social selection: Comparable colleagues with shorter periods of service remain because the illness was secretly factored into the evaluation.
- Formal error: Termination only via email, missing or unclear signature, no authorization of the signatory to represent the company.
- Incorrect reason for termination: Employees are dismissed for misconduct, even without a prior warning, or for illness without a prognosis.
These points can usually be assessed based on your termination letter, employment contract, and sick leave records. Therefore, an early review is rarely time-consuming, but often crucial for your negotiating position.
Frequently asked questions about termination of employment during sick leave
Have your termination notice reviewed now, not after you've recovered.
The most common mistake in this situation is waiting. Those who only react after their sick leave has ended have usually missed the deadline. That's why we review terminations promptly, even by phone and without you having to come to our office. If a termination letter has been received, Describe your case to us. The initial consultation with a brief assessment is free of charge, and we will get back to you promptly.
author
Raphael Lugowski
Raphael Lugowski is a specialist lawyer for employment law and has been advising employees, works councils, and staff councils in all areas of individual and collective employment law since 2016. His areas of expertise include: protection against dismissal, termination agreements, works constitution law, and employment law at the intersection of digitalization and AI.
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