Termination of the employment contract for personal reasons – frequent short illnesses

For a proper termination of the employment contract under the Dismissal Protection Act, there must be a reason for termination. This can be behavioral, personal or operational in nature.
The “classic” personal reason for termination is termination due to frequent short-term illnesses (so-called “sick celebrations”, i.e. reporting sick despite being able to work, does not belong in this category. “Sick celebrations”, which is one of the behavior-related reasons, can even be an extraordinary and immediate reason for dismissal represent, cf https://www.wsk-arbeitsrecht.com/2016/01/ausserordentliche-fristlose-kuendigung-des-arbeitsverhaeltnisses/). The interests are clear: the employee is often sick. The employer has to continue to pay wages and does not receive any work, although he is dependent on it. If this happens frequently over the course of a year, the employer may consider terminating the employee. Whether there is a personal reason for termination is determined as part of a three-stage examination.
Negative health prognosis (1st stage)
The first step is to check whether a negative health prognosis can be made for the person who is to be terminated. This forecast is generally directed towards the future and is assessed based on the circumstances at the time the person terminated receives the notice of termination.
According to the BAG, a graduated burden of presentation and proof applies. Frequent short illnesses can have a certain indicative effect for the future, which allows the conclusion of a negative health prognosis (BAG, judgment of April 12, 2002, Ref: 2 AZR 148/01). Otherwise the employer would have no chance of meeting its burden of presentation and proof in the process.
The employee can then counter the employer's argument by saying that the frequent short illnesses do not have a negative health prognosis. To do this, the employee must generally release the doctors treating him and/or the health insurance company from their duty of confidentiality. However, a negative prognosis does not conflict with the fact that the absences are due to different illnesses, since frequent and different illnesses can indicate a certain susceptibility to illness (BAG, judgment of November 10, 2005, Ref: 2 AZR 44/05).
If, based on what has been described above, you come to the conclusion that there is a negative health prognosis for the respective employee, further examination must be carried out at the second stage.
Significant impairment of operational interests (2nd stage)
At the second level, the decisive factor is whether the employer's operational interests are significantly impaired. The employer must explain this in the event of a legal dispute.
Two types of impairments come into consideration here. On the one hand, this can be the presence of operational disruptions. On the other hand, a significant economic burden on the employer can also represent an impairment of company interests. This is the case, for example, if the employer is often exposed to high continued payment costs, for example for a period of more than six weeks per year. A further argument for the considerable economic burden on the employer will now also have to be seen in the threat of later granting or compensation for vacation (ECJ, judgment of January 20, 2009, ref: C-350/06 and ref: C-529/06) .
If the second stage of the examination is also to the detriment of the employee, a comprehensive weighing of interests must then be carried out (third stage).
Balancing of interests (3rd stage)
The third stage is characterized by the fact that the interests of the employee and the interests of the employer are weighed against each other. The main thing to take into account here is the causes of the illness and whether and for how long the employment relationship was undisturbed. The age and marital status of the employee also play a role. If the third stage also fails to the detriment of the employee, the termination is socially justified and therefore effective.
Conclusion
A dismissal for personal reasons due to frequent short-term illnesses often entails high risks for the employer in the event of a dismissal dispute, as the employer usually does not know whether the health prognosis for the person being terminated was correctly negative. It is all the more important for the employer to analyze all the facts available to him before issuing a dismissal for personal reasons in order to be able to assess the risks of any subsequent process in advance.