Termination due to illness – Important information

All information about dismissal due to illness – answers to your questions

You are probably reading these lines because you have recently been unable to work properly due to health reasons. Your employer may have taken this as a reason to give you notice of termination. Or you may soon be facing dismissal due to illness. It is understandable that this situation is stressing you, and you are now looking for reliable information about whether your employer even has the right to dismiss you. The main question for you is probably how to deal with the Termination should handle. And whether severance pay might be possible.

In this article I would like to Employment law attorney in Hamburg, provide you with the best possible information on the topic of dismissal due to illness. You will receive information on, among other things,

• what dismissal due to illness means for you,
• whether the termination is likely to be effective,
• what you can do against the termination and
• whether you are entitled to severance pay.

A great deal of knowledge and care has gone into this article. I have researched numerous court rulings for you so that you can be as well informed as possible. I have provided links to all relevant court rulings. I invite you to read at least as far as the practical part. Then you will know what you should do next.

Examination: Dismissal of employees due to illness

Dismissal due to illness is a sub-case of ordinary dismissal for personal reasons. The employee is no longer able to perform the work required of him due to illness. You must always consider dismissal due to illness if the illness and the associated absences lead to significant impairment of the employer’s operational or economic interests However, the illness itself is irrelevant if it has no impact on the workplace.

Since dismissal due to illness is generally not a controllable situation, a previous Disciplinary warning no requirement for effectiveness for dismissal due to illness. However, some lower courts have taken a different view when illnesses can be remedied through manageable behavior, such as taking medication.

LAG Hessen, judgment of 18.03.2014 – 13 Sa 1207/13

Like dismissal for personal reasons, the effectiveness of dismissal for illness is also examined in three steps:

(1) Negative health prognosis: There must be a negative prognosis regarding the continued incapacity to work.

(2) Significant impairment of business interests: The downtime and the downtime still to be expected must have a significant impact on operational interests.

(3) Balancing of interests: In the context of a case-by-case balancing of interests, it must be examined whether the significant operational impairments result in a burden on the employer that can no longer be reasonably accepted.

Questions and problems arise at each of the stages mentioned above regarding the validity of a dismissal due to illness. I will outline the most important legal requirements below.

In these cases there is a negative health prognosis

For a dismissal due to illness to be valid, a negative health prognosis must first be established. The employer must conclude, based on objective facts, that the concern about further sickness absences to the extent currently expected is justified.

These objective facts are usually the Past illness, as the employer usually has no other data available. According to case law, past absences have no direct significance with regard to the negative health prognosis. However, they are Indicative effect for future forecasts to.

When assessing whether there is a negative health prognosis, case law distinguishes between

• frequent short-term illnesses,
• long-term illnesses,
• permanent incapacity to work and
• permanent reduction in performance due to illness.

Frequent short-term illness

Even in the case of frequent short-term illnesses, objective facts must be present that allow the conclusion that illnesses will continue to occur in the future to the same extent. Short-term illnesses In recent years, a significant indication in the sense that a similar course of the disease can be expected in the future.

The employer meets its burden of explanation and proof in the process by presenting the periods of illness in the past and asserting that similar periods of illness are to be expected in the future. The employee must then prove, if necessary by releasing their doctor from their duty of confidentiality, why their health prognosis was positive at the time of termination.

However, the employer will not succeed with his dismissal on grounds of illness if the Diseases at the time of receipt of the notice of termination already healed were.

Even if these are not diseases that cause unique character The employer will not be successful in dismissing employees on the grounds of illness. The same applies to illnesses that are one-off causes such as a sports accident resulting in injury. one-off health damage, which may soon be remedied by surgery, do not justify dismissal on the grounds of illness.

Federal Labor Court, judgment of November 20, 2014 – 2 AZR 755/13

On the other hand, it does not matter for the negative prognosis whether the diseases different causes of disease Here is the Federal Labor Court:

Even if the causes of illness are different, they can still indicate a general susceptibility to illness that is likely to persist. [...] This applies even if individual illnesses—such as colds—have been cured. The cessation of individual illnesses does not call into question the general susceptibility. The situation is different with absences based on a single event.

Federal Labor Court, judgment of November 20, 2014 – 2 AZR 755/13

Long-term illness

In contrast to frequent short-term illnesses, the negative health prognosis in the case of a long-term illness is based on the duration of the illness. The employee must already ill for a long time The duration of the illness is an indication that the incapacity to work will continue in the future. The Federal Labor Court saw this as an indication in the case of an more than 20 months of continuous incapacity to work as given.

Uncertainty about the recovery of the ability to work is equivalent to a case of permanent incapacity to work if recovery is not expected in the next 24 months According to the Federal Labor Court, the employer may hire another employee on a fixed-term basis for a period of 24 months in accordance with Section 14, Paragraph 2, Sentence 1 of the TzBfG.

Federal Labor Court, judgment of 13 May 2015 – 2 AZR 565/14

It is therefore of considerable importance in this context that the Restoration of working capacity not expected in the foreseeable future Only then is a negative health prognosis justified.

Permanent incapacity to work

In the case of permanent incapacity to work, a negative health prognosis can be readily assumed. According to the Federal Labor Court, the negative prognosis is "indicated" in such cases.

Here, too, the employer bears the burden of explanation and proof according to general principles. As a rule, employers will not be able to prove permanent incapacity to work. Instead, they will attempt to justify dismissal for illness based on the principles of uncertain long-term illness.

Federal Labor Court, judgment of 12 July 2007 – 2 AZR 716/06

Significant impairment of operational interests

The employee’s periods of incapacity for work must have significantly impaired the company’s interests.

(1) Operational disruptions and

(2) economic impairments

These are operational disruptions

Operational disruptions Dismissals due to illness are suitable if there are serious disruptions in the production process that cannot be addressed through reasonable interim measures. Such disruptions can occur especially in the case of frequent, short-term absences. Examples:

• Production downtime
• Decline in production
• Need to train replacement staff
• Overwork of staff
• Withdrawal of staff from other areas
• Indirect impact on other work areas

If these disruptions cannot be prevented by possible and reasonable bridging measures, they are in principle capable of justifying termination. Bridging measures In particular, the hiring of temporary staff and the deployment of a personnel reserve are considered. If such bridging options are available, there can be no talk of a significant disruption to operations.

Especially in cases of frequent short-term illnesses, hiring temporary workers is rarely considered as a bridging measure due to the short-term nature of the sickness absences. However, the situation is different for long-term illnesses, as the employer has more planning flexibility and can limit or avoid disruptions to operations by hiring a (temporary) replacement.

BAG, judgment of 16.02.1989 – 2 AZR 299/88

Significant impairments due to economic burdens

It is also recognized that economic burdens can also represent a significant impairment of the company's interests. Such burdens lead to a significant impairment of the company's interests if, based on the previous negative health prognosis, Continued payment costs of more than six weeks per year are expected are.

Federal Labor Court, judgment of November 20, 2014 – 2 AZR 755/13

If the employer Personnel reserve to compensate for absences due to illness, this must be taken into account in his favour according to the case law of the Federal Labour Court.

Despite the existence of significant operational impairments, there is not always a reason for termination on the part of the employer. It is conceivable that the employer has to disability-friendly workplace can be implemented so that no further operational disruptions occur. This is a result of the principle of proportionality, which permeates all termination law.

Balancing of interests to the detriment of the employee

The third step in assessing the validity of a dismissal due to illness involves a balancing of interests. Here, labor courts examine whether the identified significant operational impairments are still acceptable to the employer due to the specific circumstances of the individual case or whether they would result in excessive demands. In this balancing of interests, all relevant circumstances of the case must be considered.

Operational cause as a reason for illness

Particularly strict standards must be applied to dismissal due to illness if the Illness is an operational cause A particularly vivid example of this is an industrial accident that was not the fault of the employee and occurred only because the employer failed to fulfill its duty of care and protection. The same applies to an existing occupational disease followed by long-term incapacity to work or frequent short-term illnesses.

Smooth course of the employment relationship

When balancing interests, it is particularly important whether the employment relationship has been trouble-free to date. Other important aspects in the balancing of interests are

• the age of the employee,
• his marital status,
• Maintenance obligations and any existing
• Severe disability.

Federal Labor Court, judgment of November 8, 2007 – 2 AZR 292/06

Reasonableness of bridging measures by employers

At this level of review, the scope of the assessment by the Labour Court also extends to whether the employer, despite significant operational impairments, further bridging measures are reasonable.

If the employer maintains a staff reserve, they will generally be expected to take fewer bridging measures. However, the question may be assessed differently if the employer does not have a staff reserve. In this case, the employer may be further obligated to compensate for the absences through organizational measures or the recruitment of (additional) replacement staff.

BAG, judgment of 06.09.1989 – 2 AZR 19/89

Transfer to a job suitable for the disability

In the event of absence due to illness, employers are obliged to consider whether it is possible to transfer the employee to a job where his or her illness will not have any further impact.

An employer may only consider dismissal due to illness if further illness is expected if the employee is employed elsewhere. However, the primary consideration is whether the employee can be transferred to a "suitable job."

Federal Labor Court, judgment of 19 May 2010 – 5 AZR 162/09

Disruptions and high costs of continued payment of wages

If, in addition to operational disruptions, the employer also has to high continued payment costs If the employee is burdened, these are circumstances that strengthen his interest in termination. Exceptionally high costs of continued salary payments must also be taken into account in favor of the employer when balancing the interests of the employee.

Company integration management in the event of dismissal due to illness

If the incapacity to work for more than six weeks within one year the employer is obliged to implement an in-company integration management program. It does not matter whether the incapacity to work has occurred continuously or repeatedly to the extent specified. The employer is then obliged to Section 167 para. 2 SGB IX obliged to examine, with the involvement of the employee representatives and you personally,

• how incapacity to work can be overcome,
• which services or assistance can be used to prevent a renewed incapacity to work
• and thus the job can be retained.

No obligation to participate in the bEM

You are not obligated to participate in the company's integration management program. However, if you do not participate, your employer will not be able to assess how your incapacity to work can be overcome and how recurrence of incapacity to work can be prevented. In the event of a subsequent dismissal due to illness, the employer will be able to claim that they have fulfilled their duty. Because they have – at least outwardly – tried to reach out to you.

Termination is not invalid if bEM is missing

The situation in which an employer fails to implement a company integration management program is legally challenging. Does this render the termination irretrievably invalid? No, that is not the case. Termination due to illness is considered a case of dismissal for personal reasons in accordance with Section 1 of the German Dismissal Protection Act (KSchG). Company integration management is not a formal or substantive prerequisite for the validity of a termination due to illness.

However, the burden of explanation and proof for the employer is increased. The Federal Labor Court stated:

Company integration management is not just a set of programmes.

Increased burden of explanation and proof if the bEM is omitted

If the company fails to implement integration management, the employer cannot claim that there were no appropriate employment opportunities available for the employee's illness. Like all other dismissals, dismissals due to illness are assessed according to the principle of proportionality. This means that the employer must demonstrate that there were no less severe means of overcoming the disruption to the employment relationship caused by the illness than dismissal.

Federal Labor Court, judgment of 18 October 2017 – 10 AZR 47/17

If the employer fails to implement the company integration management, he must also objective uselessness of company integration management The Federal Labor Court stated:

Rather, the employer must assess alternatives that are conceivable on its own initiative or that the employee may have suggested out of court, and explain in detail why neither an adaptation of the current job to working conditions that are beneficial to the employee nor employment in another job that is appropriate to the employee's condition can be considered.

Federal Labor Court, judgment of 20 March 2014 – 2 AZR 565/12

What you can take away from this

As you can see, the employer's hurdle becomes significantly higher if you fail to offer you an integration management program. Therefore, you should have doubts about the validity of your termination if your employer hasn't offered you an integration management program.

What you can do against dismissal due to illness

If you have been dismissed due to illness, your options are limited. Essentially, your options boil down to two alternatives: (1) You can do nothing about the dismissal. (2) Or you can file a wrongful termination lawsuit.

If you do not take action against the dismissal due to illness, the employment relationship will end on the scheduled date. However, if you wish to defend yourself against the dismissal, you must Dismissal protection suit After receiving the notice of termination, you have only three weeksAfter that, you can no longer successfully challenge the termination – the law presumes it is valid. Therefore, the three-week deadline is one of the most important deadlines for lawyers in employment law.

You can file a wrongful termination claim yourself at the legal filing office of the court responsible for your case. You can also be represented by a lawyer. They would then also prepare the wrongful termination claim for you. Your decision here depends primarily on the costs and benefits. And, of course, your own interests.

After the unfair dismissal claim has been filed, the court will set a date for Conciliation hearing This appointment is intended to determine whether you can reach an amicable agreement with your employer. If this is not the case, the proceedings will continue as contentious proceedings, with written submissions, a subsequent chamber hearing, and a judgment.

However, an agreement is certainly possible at any stage of the proceedings. The majority of unfair dismissal proceedings end with a settlement rather than a judgment – even at the court hearing. And it's not uncommon for the employee to receive severance pay.

When a lawsuit against dismissal due to illness makes sense – the issue of severance pay

Finally, you need some guidance on when it's worth taking action against a dismissal for illness. Well, the answer to this question isn't so easy. It primarily depends on your interests and therefore often on an overall economic assessment. If you absolutely don't want to lose your job, the decision is easy: file a lawsuit; economic considerations are irrelevant to you.

Is it also advisable to file a wrongful termination suit if you wish to terminate your employment?

However, the situation is different if you've already mentally resigned from your employer. Simply allowing the termination to take effect can be a costly proposition for you. After all, the employer knows nothing about your desire to leave. Rather, they must assume that you want to get your job back. This is also what a wrongful termination lawsuit in Germany is aimed at—retaining your job.

If you do not file a wrongful termination suit in this situation, you may lose a lot of money. As you probably already know, you have in principle no legal entitlement to severance payNevertheless, settlements with severance payments are common practice in labor courts. The underlying motivation is simple: the employer does not know 100 percent whether his dismissal is valid and therefore terminates the employment relationship. Therefore, he is willing to obtain 100 percent certainty. Namely, by Payment of severance pay in exchange for legally secure termination of the employment relationship.

Prospect of severance pay in the event of dismissal due to illness

Outside of the clear-cut scenarios of valid dismissal due to illness, there is often scope for severance pay. This is because the Federal Labor Court only decides on specific cases. If your case is slightly different, this can have far-reaching legal consequences. For this reason, filing a lawsuit may make sense even if you no longer have any interest in coming to work.

Whether you hire a lawyer to handle your case or conduct the proceedings yourself in the first instance is a Balancing questionAn employment lawyer isn't cheap. However, they will handle the process from start to finish, relieve you of the stress, and have negotiating experience. A lawyer should usually cover the costs of their employment.