Germany tends to be among the more employee-friendly countries, especially when it comes to firing employees. However, you still can get fired in Germany, and actually, even for health reasons. There is a widespread misconception that a dismissal due to illness is illegal in Germany. Wrong. On the other hand, there are employees who are afraid of being fired for being sick once for more than a few days. In theory, they should also be wrong. But when can employees get fired for being sick in Germany? What are the requirements? And how can you defend yourself against unfair dismissal due to illness? This blog article answers these and other questions
Is a dismissal due to illness even legal?
Terminations due to illness are generally permissible in Germany. However, there are rather high hurdles. If an employee has protection under the German Dismissal Protection Act, there are only three valid reasons for a termination. Personal reasons, conduct or “operational requirements”. A dismissal due to illness is regarded a dismissal for personal reasons. And for this, very strict requirements apply. A termination can be pronounced, for example, if an employee can no longer fulfill the employment contract due to illness. The termination is effective if the employee is permanently unable to work. Furthermore, the termination of the employment relationship is also “socially justified”. Rarely, theses requirements are met and acceepted by the labor courts. Hence, dismissals due to illness are possible, but the other 2 categories are more frequent:
What conditions apply for a dismissal for sickness?
An employer is not generally allowed to give notice simply because you are ill. Only if an employee is absent often or for a very long time because of illness, an employer can legally dismiss him/her, if the following conditions are met:
- There is a negative “health prognosis”
- The absence due to illness has serious consequences for the employer’s financial and operational interests and
- The employer’s interests outweigh those of the employee.
The employer must also prove the above items:
- Negative “health prognosis”: An employer must not only prove that the employee was frequently unable to work in the past due to illness, but also that this is also to be expected in the future. Which is possible for a chronic disease, but not with a recovered illness. As a rule of thumb, the employer can terminate the contract if there is no positive forecast for the next 24 months.
- Disruption of operations or finances: An employer must also prove that the absence of the employee causes significant disruption to the employers operations or financial burdens. This is easier to prove in smaller companies, for example, if an employee’s frequent absences reduces turnover, if other employees are often more burdened, or if the employer has to continue paying wages in the case of frequent short absences due to illness.
- “Balancing of interests”: Last, but not least, an employer must prove that his interests outweigh the interest of the employee to keep his job. Not an easy task. The courts will assess this aspect on a case-by-case basis, for example, differently in the case of a serious illness in a long-term, problem-free employment relationship compared to a short employment relationship characterised by frequent absences due to illness.
Is a warning required?
A warning is not required to be legally terminated in Germany for being sick. In the case of a “personal” termination, the employee is not accused of any “manageable” misconduct. In most cases, the employee cannot do much about being sick. Hence, a warning makes no sense, and is, according to the case law of the German labor courts, unnecessary.
“Edge cases”: Sick during probationary period
Different rules apply during the probationary period; a dismissal due to illness is indeed possible, as the statutory protection against dismissal only applies after the probationary period of 6 months. During the first 6 months of employment, a termination due to illness is possible with a notice period of 14 days. This is one of the few “edge cases” when you can get fired in Germany for being sick.
What can you do if you are dismissed due to illness?
You can get legally fired for being sick in Germany. However, the bar is high and your chances – at least for a good severance pay – are good. If you have received a notice of termination for personal reasons, you should discuss how to proceed with an expert. This should ideally be a lawyer who specializes in employment law (information on this can be found here in our guide to termination).
In any case, you should act quickly. With the three weeks after the receipt of a notice of termination, you must file an action for protection against unfair dismissal. It is important that an expert in labor law carefully examines whether the dismissal due to illness is effective. This is also true if you come to the conclusion that you have no interest to continue working for company. Even if you have a new job in mind, an invalid termination will trigger a higher amount of severance payment. You can do a rough check of the range of a severance payment here: