Voraussetzungen für eine krankheitsbedingte Kündigung

Termination due to illness is one of the main applications of personal termination. It is permissible within narrow limits developed by labor court jurisprudence. The following article will show what these limits are.

General

In addition to physical illnesses, “illness” as a reason for termination can also include addictions and mental illnesses.
Illness as a reason for termination must be distinguished from termination not because of, but during, illness. The latter has no impact on the legal validity of a termination.
For every dismissal due to illness, the employer must always check beforehand whether a so-called “suffering-friendly job” can be made available or created in which the sick employee can continue to work despite his or her health restrictions. Case law also requires the employer (as far as possible) to change work processes, redistribute tasks and transfer other employees. However, the employer does not have to create a workplace that is appropriate for suffering by terminating other employees in order to then be able to assign this workplace that is appropriate for suffering to the sick employee. However, if this restriction makes it possible to create a workplace that accommodates suffering, the employer may not terminate the employee due to illness.
In principle, the employer must also carry out operational integration management before dismissal due to illness. However, the implementation of company integration management is not a prerequisite for the effectiveness of a dismissal due to illness. Only the employer's - already high - burden of proof in the dismissal protection process increases again without implementing company integration management.
Case law distinguishes between three basic types of termination due to illness:

termination due to long-term illness
termination due to frequent short illnesses and
termination due to reduced performance due to illness

If an employee has been terminated due to illness, it must be checked in all three cases whether the termination is effective. It always depends on the circumstances at the time the notice of termination is received. In principle, subsequent developments (for example an improvement in health) can no longer lead to the termination being ineffective. At best, a claim for reinstatement may be considered.
Jurisprudence examines dismissal due to illness in three stages:

First of all, a negative health prognosis must be able to be made with regard to further health development,
The employee's absences due to illness must lead to a significant impairment of the company's interests; These can be disruptions in operations or economic burdens,
Finally, as part of a balancing of interests, it must always be checked whether these operational impairments lead to a burden for the employer that cannot reasonably be accepted.

In general, it can be said that case law is extremely strict when it comes to dismissal due to illness. As a rule, if the employment relationship is terminated due to illness, there is a good chance of taking legal action against the termination.

Long-term illness

In the case of a long-term illness, the inability to work must still exist when the notice of termination is received. From this perspective, even an extremely long illness of, for example, two years cannot justify termination if the employee in question has returned to work.
There are no fixed guidelines for how long an illness must last in order to justify a negative health prognosis. This also depends, among other things, on how long the employment relationship has existed. However, a minimum period arises from the Continued Payment of Remuneration Act. Absences of up to six weeks are in no way a “long-term illness”.
Employers can rarely claim significant impairment of company interests in the form of economic burdens in the event of a long-term illness. According to case law, the statutory continued payment costs alone are not an unreasonable economic burden. It is also often difficult for the employer to explain operational disruptions, as case law requires them to first take bridging measures (in particular hiring unskilled workers, overtime, transfers). People with long-term illnesses are therefore generally particularly well protected against dismissal. However, the case law of the Federal Labor Court automatically assumes that the company's interests will be significantly impaired if the employee is unfit to work for a long period of time (in the case decided on, 18 months) and at the time of termination it is still completely uncertain whether the ability to work will be restored. In practice, if the illness lasts for 18 months or more, things become “tight” for the employee. In addition, case law also assumes that the company's interests are significantly impaired if (even in the case of illnesses lasting less than 18 months) the health situation is not expected to improve in the next 24 months after the termination was given. The case law justifies this by saying that in these cases the employer is prevented from exercising his right of direction for an indefinite period of time. This alone represents a significant impairment of operational matters.
The balancing of interests is particularly important in the case of a long-term illness, as with any termination due to illness. In particular, it is checked whether the illness was caused by operational reasons and how long the employment relationship previously existed without disruption. If the reasons are operational or the employment relationship has been undisturbed for a long time, the employer is more likely to accept any impairment of his operational interests. In addition, when weighing up interests, the employee's social data such as age, marital status, maintenance obligations and severe disability must be taken into account.

Frequent short illnesses

In practice, cases of frequent short illnesses predominate. In the case of frequent short-term illnesses, the employer must always demonstrate that further significant absences due to illness are to be expected in the future. For this to happen, a negative health prognosis must be made. The employer can rely on past absences. Here too, there are no fixed guidelines. However, an analysis of case law shows that below a missing rate of 25 %, dismissals due to illness due to frequent short illnesses have almost no chance of success. In any case, a “critical value” for the employee is likely to be reached with a missing rate of 30-40 %. However, the employee can argue that certain illnesses do not allow any conclusions to be drawn about the future. This is the case, for example, with illnesses that have healed without consequences (e.g. broken bones). However, since the time at which it was received is important when assessing the effectiveness of a dismissal due to illness, the employee cannot object that he had a long-overdue operation after the dismissal or that he had changed his previously unhealthy lifestyle habits and would therefore no longer be able to do so in the future often fall ill. All of this no longer has any influence on the effectiveness of the termination due to illness.
In the case of frequent short illnesses, operational impairments can often occur in the form of economic burdens. Costs of continued payment of wages are recognized as economic burdens in case law if they amount to more than six weeks per year. Here too, however, costs for illnesses for which there is no risk of recurrence should not be taken into account. If an employer maintains a personnel reserve in order to be able to cushion absences due to illness, case law also takes into account the costs incurred. The employer can only demonstrate operational disruptions if it is no longer possible to compensate for the illnesses through bridging measures.
Finally, in a comprehensive weighing of interests, it must be checked whether special circumstances, such as an operational cause for the frequent short illnesses or a long, undisturbed existence of the employment relationship, mean that it is still reasonable for the employer to continue the employment relationship despite operational impairments.

Reduced performance due to illness

The last case group that comes into consideration is the reduction in performance due to illness. In this case, the employee is not unfit for work and can in principle carry out all contractually agreed activities. However, it can no longer provide full performance in terms of quality or quantity.
According to case law, an employer must generally accept a normal age-related decline in performance. Apart from that, it must always be checked whether the work performance falls short of the employer's legitimate expectations of a balanced relationship between the two parties' services to such an extent that it becomes unreasonable for him to stick to the unchanged employment contract. Again, there are no fixed guidelines as to the limit above which a reduction in performance can justify termination due to illness. The case law of the Federal Labor Court offers a point of reference in that in one case a reduction in performance of 35 % was considered sufficient to justify a dismissal due to illness. Finally, a comprehensive weighing of interests must also be carried out when it comes to a reduction in performance due to illness.

Conclusion

When an employment contract is terminated due to illness, case law places particularly high demands on its effectiveness. A labor court review of a dismissal due to illness is therefore often useful. In many cases, an appropriate severance payment can at least be achieved through negotiation with the employer. It should always be noted that a dismissal protection claim against dismissal due to illness can only be filed within three weeks of receipt. If this deadline is missed, the termination is considered effective in any case. It is therefore advisable to seek employment law advice as soon as possible after receiving a dismissal due to illness. It is even better to do this in advance of an impending termination.