Many days of absence due to illness can lead to dismissal by the employer. Often, however, this can be challenged. I explain if and when you should appeal against the dismissal.
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–> From: Dr. Ulrich Hallermann Published on: 29. January 2021 Category: Employment law, Illness, Dismissal
1. When is a termination due to illness possible?
As a rule, termination due to illness is a termination for personal reasons, the admissibility of which is determined in three stages:
1. Stage: negative prognosis
The employer must make a health prognosis. Substantial absences must therefore be expected in the future as well. The decisive factor is the perspective at the time the notice of termination is received. For the assessment, the employer may also draw conclusions from past absences. What is important, however, is the development in the future.
Example: A suffered a compound fracture of the leg during a skiing vacation and is therefore absent for months at a time. But his doctor is sure that A will be able to work normally again in three weeks. The leg fracture cannot allow any conclusions about future illnesses of A. There is therefore no negative prognosis.
Counterexample: Employee A is chronically immunocompromised and therefore very susceptible to infections. He has been absent from work for several weeks every winter for the last five years due to this condition. Here, the employer can draw negative conclusions for the future from the past, because illnesses of A can also be expected next winter.
2. Stage: No milder remedy
Dismissal is only an option if the employer cannot deploy the employee in another job. This is particularly relevant in the case of physical ailments.
In the evaluation of milder means, the decisive factor is above all whether the employer has carried out "operational integration management (bEM)". This was introduced by the legislator in 2004 and is now defined in § 167 para. 2 SGB IX anchored. It serves the health prevention and above all the employment security. It applies to all employees.
A bEM is not a prerequisite for the effectiveness of a termination, but still plays a crucial role. With the help of the bEM, the employer should find measures that are a more lenient means than termination (example: transfer).
If the employer has not attempted such integration management with the employee, an action for protection against dismissal has a chance of success. In this case, the employer must prove that the employment relationship would not have had any chance of continuation even with a bEM. This was already made clear by the Federal Labor Court in 2009 (Az.: 2 AZR 400/08).
However, a BEM is only required if the employee has been absent due to illness for more than six weeks in a calendar year.
3. Stage: Weighing of interests
Finally, the interests of employer and employee must be weighed against each other. Termination is only permissible if the employer can no longer reasonably be expected to continue employment. Many factors play a role in this weighing of interests. These include:
- Length of service
- Attendance rate before the illness
- Maintenance obligations
- Opportunities on the labor market
- Compensation possibilities of the employer
This is primarily contrasted with the economic interest of the employer. The employer must continue to pay employees their salary despite illness, especially in the case of frequent short illnesses (§ 3 EntgFG). Employers also need planning security. There can be no question of this if the whether and when of the return to work is questionable.
2. How many sick days employees may allow themselves?
There is no general limit for absenteeism. The assessment is always made on a case-by-case basis.
Conversely, termination is possible even if there are only a few days of illness if the employee is certain to be absent permanently.
For orientation: according to the Federal Statistical Office, employees were on sick leave for an average of 10.9 days in 2019. Absenteeism must therefore usually be significantly higher than this value in order to be an indication of sufficient future absenteeism.
In particular, the last three years before the termination are relevant. This must be seen in relation to the total length of employment.
In terms of very rough rules of thumb, the following can be said:
- A continuous period of absence of more than six weeks is a strong indication of future absenteeism.
- The same applies if the employee has repeatedly been absent for a short time and for a total of six weeks in a year.
- In addition, a negative prognosis can be assumed if several short absences have occurred in each of the last three to five years.
An employee had an average of 35 sick leave days per year in the period 2007-2011. The Iserlohn Labor Court (Urt. v. 02.10.2012 – 2 Ca 401/12) has admittedly accepted a negative prognosis for the future. Nevertheless, the dismissal was socially unjustified. The employee was 54 years old and dependent on two children. In the years 1984-2006 he was not negatively in appearance. The numerous days of absence in 2007-2011 could therefore not justify termination due to illness.
The Rhineland-Palatinate Labor Court (Urt. V. 10.02.2014 – 3 SA 372/13), on the other hand, stated that significantly fewer days of absence can also be sufficient. Although § 3 EntgFG assumes six weeks of continued payment of remuneration. In the opinion of the court, however, even 12 days of absence per year can be sufficient if the other circumstances speak in favor of a dismissal.
The court considers each case individually. There is no uniform case law on maximum sick days.
3. What applies in a small company and during the probationary period?
In the first six months, the employer can usually terminate the employment contract without cause. The Dismissal Protection Act only came into force after this ruling. Waiting period applicable.
By the way: The continued payment of remuneration in case of illness is also not immediately available to employees. Here, four weeks of employment without interruption in the company is required.
Even in a small company with a maximum of ten employees, the Dismissal Protection Act does not apply. The employer can then terminate the employment due to illness without having to fulfill the above-mentioned requirements.
In both cases, however, the termination must not be immoral. Arbitrary and discriminatory dismissals are also invalid here.
4. What employees should do after being dismissed due to illness?
You must act quickly, because you must file a lawsuit within three weeks of receipt of the notice of termination (§ 4 KschG). Otherwise also an actually ineffective notice becomes effective.
The employer bears the burden of proof for the termination requirements. He must prove your absences. He must also provide a comprehensive and conclusive explanation of why absences are also to be expected in the future. He must also credibly demonstrate why his interest in termination outweighs your interest in keeping your job. He often finds this difficult to do.