Dismissal due to mental illness or burnout

Mental illness is no longer a marginal issue in the modern workplace – it is at the centre of social and corporate debate. An increase in days of absence due to mental illness seems to reflect a noticeable trend: According to the health report of the health insurance funds, the number of days of incapacity to work due to mental illness has more than tripled in recent decades. This development highlights the need to pay more attention to these conditions in the workplace. Against this background, “dismissal due to mental illness” is an issue that needs to be approached with caution and with close attention to the legal framework.

In principle, dismissal for mental illness is possible

Employers are allowed to dismiss employees who suffer from mental illness, but only if they comply with the strict guidelines of German legislation. If mental illness is present, it can be used as a reason for dismissal for personal reasons in the same way as physical illness, provided that the legal criteria for such dismissal are met.

The same principles apply to “dismissal due to mental illness” as to other dismissals due to illness, although in the case of mental illness additional special features must be taken into account depending on the individual situation. This is particularly the case for recurring or short-term impairments rather than chronic long-term illnesses, where the legal requirements for dismissal on personal grounds may be particularly challenging.

Requirements for dismissal due to mental illness

• Necessity of a negative prognosis: A negative prognosis requires not only a temporary but also a permanent impairment of the ability to work. The prognosis for mental illness in particular can be challenging from an ethical point of view. However, if there have been unsuccessful attempts at treatment, such as psychotherapy, this could support a negative health prognosis. Similarly, an assessment by the medical service or a doctor may justify a permanent incapacity. In the case of depression, employment tribunals require a high level of evidence, especially if work-related stress has contributed to or caused the illness, which again is in the employee’s favour.
• Impact on business processes: Operational processes must be disrupted by the employee’s illness or there must be a risk of serious economic detriment to the company. The burden of proof is on the employer. Mental illness, in particular, can lead to employees being unable to perform their work reliably, which would affect business operations.
• Impossibility of creating a suitable workplace for the employee: It should be considered whether it is possible to keep the employee in the job by changing the working environment. Particularly in the case of stress-related depression, an adjustment – for example, part-time work, a different area of work or avoiding shift work – can help reduce stress. Company integration management (BEM) may also be necessary.
• Balancing the interests of the employee and the employer: Ultimately, the interests of the employee and the employer need to be carefully balanced. If the balancing of interests leads to the conclusion that the continuation of the employment relationship is unacceptable for the employer, the employer may decide to dismiss the employee.

Conclusion:

• Dismissal on the grounds of mental illness is permissible under certain circumstances, but the legislation and case law apply strict criteria.
• In particular, the prognosis of further health development is a challenging task in view of the peculiarities of mental illness.
• The employer has the right to inquire about the nature of the mental illness, but only if it prevents the employee from performing his or her job properly or makes it significantly more difficult.
• As an alternative to dismissal, there is also the possibility of terminating the employment relationship by means of a termination agreement or for the employee to resign. Any disadvantages to the employee should be carefully considered.