Termination due to illness: Am I entitled to a severance payment in Germany?

Many dismissals due to illness are ineffective. A dismissal in connection with an illness therefore often raises questions as to whether and when such dismissals are effective at all and whether the person dismissed is entitled to severance pay.

As a rule, the employee cannot be held responsible for his illness, but it originates from his personal sphere. Therefore, dismissal after illness is considered a special form of personal dismissal. Person-related means that the notice of termination is based on circumstances in the person of the employee. Since this is a disruption of the employment contract concluded with the employer through no fault of the employee, an effective employer-side Dismissal after illness is subject to special conditions.

In the following you will find out what you should know about termination after illness and what you should consider with regard to possible severance pay

1. Termination due to illness

Perhaps you, like many employees, assume that you cannot be dismissed during an illness or because of illness. However, this view does not correspond to the legal facts. The employer can dismiss you, even if you are incapacitated by illness.

The Dismissal Protection Act lists 3 reasons which entitle the employer to terminate the employment.

Termination is possible...

  • for reasons in the person of the employee, for example as termination after illness.
  • for behavioural reasons, such as frequent late arrivals or insults to other workers.
  • for operational reasons, e.g. restructuring of the company, closure of a department or part of the company.

In practice, dismissal due to illness is considered to be an important case of dismissal for reasons relating to the employee. The sickness-related notice of termination is therefore a personal notice of termination for the following reason: The employer assumes that the employee will no longer be able to fulfill the employment contract due to his illness. The employee's incapacity to work due to illness constitutes a breach of the employment contract. A contractual disruption is in this case, because the employee cannot perform the work contractually owed by him. The breach of contract can have certain consequences for the employer, such as the disruption of business operations or the burden of continued wage payment costs in considerable amounts. Depending on the severity of the breach of contract, the employer must either accept it or, under certain conditions, can react by terminating the employment contract. When the employer has to accept the breach of contract and its consequences and when not, is always a question of weighing up the interests involved. On the one hand, the interests of the employee in the continuation of the contract are employment contract and the illness not caused by it, on the other hand, to take into account the economic interests of the employer

2. Condition of a dismissal due to illness

A dismissal by the employer due to illness is only effective if these 3 conditions are met:

  1. At the time of the termination, facts had to be available to justify a negative health prognosis. This means that further illnesses of the employee to the same extent as before are to be expected for the following period.
  2. It must also be established that the following expected periods of absence of the worker due to illness are lead to a considerable impairment of operational or economic interests on the part of the employer. The impairment of the employer's interests is assumed in particular if the employee's absence disrupt business operations or place a considerable burden on the employer in terms of continued wage payments.
  3. In a final balancing of interests, it must be examined how the employer's interest in termination and the employee's interest in continuation relate to each other. The employer can effectively give notice of termination due to illness if this weighing up of interests is in his favour. It is in the employer's favour if, after a comprehensive assessment of the mutual interests with regard to the duration of the employment relationship, the causes of illness, the absences of comparable other employees and the age of the employee, the continuation of the employment relationship is no longer reasonable for the employer.

In weighing up interests, the main concern is to find the mildest means - ultima ratio - to ensure that in future to mitigate or eliminate disturbances in the employment relationship caused by absences due to illness. The system then checks whether the sickness-related notice of termination is proportionate. Proportionality is the criterion the labor court jurisdiction has high standards. A dismissal after illness is therefore regularly considered disproportionate. if the employer has failed to carry out a company integration management with the employees. The 3 conditions must all be fulfilled in the case of a dismissal after illness. The validity of the notice of termination depends on them.

3. Company inclusion management

§ Section 167 (2) sentence 1 of the ninth book of the Social Security Code (SGB IX) obliges the employer to offer a company integration management if the employee is unfit for work for more than 6 weeks in the period of one year. The company integration management bEM is a special procedure. It is intended to help clarify how a further stressful incapacity to work can be overcome in the future and which benefits or assistance can prevent a renewed incapacity to work. The aim is always to preserve the job of the frequently sick employee. For example, the employee may initially work for a shorter period of time or perform another activity that is less stressful. Without a correctly performed bEM, the courts regularly assume that the dismissal is invalid. From the point of view of the labour courts, there is a lack in these cases that the dismissals can be regarded as the mildest means of responding to a contractual disruption caused by illness.

Although § 167 SGB IX refers to people with disabilities, the bEM is not applicable to employees with a long illness not only for employees with a severe disability. Has the employer violated the statutory obligation to carry out a bEM, the labour court will not automatically declare the invalidity of sick leave. In this case, however, the employer will be informed of this even if a negative health prognosis usually do not succeed in convincing the court that dismissal is the mildest remedy. The labour judges assume in these cases that there would be other employment opportunities for the employee to be dismissed due to illness, or the milder remedy than termination of employment after illness, in order to avoid future absences. Without proper company integration management, the employer violates the following rules by giving sick leave the principle of ultima ratio. In this case, he could only represent the validity of the termination in this case if he could convince the court of this, that a bEM would not have been of any benefit in the individual case in question. Employers usually do not succeed in proving this. In the case of an ineffective dismissal after illness, proceedings before the labour court can then also involve compensation. We take a closer look at these cases in a separate section

4. Different types of termination after illness

In the case of termination after illness, a distinction is made between different case constellations:

  1. Frequent short illnesses - In this case, short illnesses of days or several weeks duration in the year add up to a period that the employer no longer wishes to tolerate.
  2. Permanent illness - Here, the employer is permanently ill without interruption, with no improvement in the situation in sight. The employee is also sick at the time when the employer gives notice of termination. Often an occupational disability is involved in this context.
  3. Prolonged illness - Although the restoration of the employee's health at the time of termination is not excluded, the employer still considers the situation to be no longer reasonable.
  4. Permanent reduction in performance due to illness - Here, an illness leads to a permanent reduction in the employee's performance, even if the employee is present in the company.

The prerequisites for termination after illness in the various case constellations

Different prerequisites for the validity of a termination after illness are assumed for the different case constellations.

  1. Termination after illness due to frequent short illnesses
  2. Cancellations due to frequent short illnesses are permissible if these conditions are met:
    • There is a negative health prognosis in an observation period of 2 years with more than 6 weeks of incapacity to work per year.
    • A considerable impairment of the employer's interests is to be expected through further incapacity to work.
    • A weighing up of interests shows that the continuation of the employment relationship under these circumstances is no longer reasonable for the employer.

    In the case of the frequent short illnesses, the effectiveness of a dismissal after illness presupposes, among other things, that the employer's burden of continued wage payment costs should be considerably higher than the 6-week period. This refers to incapacity to work that adds up to 45-60 days in a calendar year, for example.

  3. Persistent illness and incapacity to work
  4. In case of permanent incapacity to work, the prognosis for health is clearly negative. Often, as a result of an illness a disability or severe handicap. This is the test of effectiveness a termination after illness therefore only concerns the points of impairment of interests and the weighing up of interests. In the case of prolonged illness, the question of whether the employee can still be employed at another workplace is of particular importance.

  5. Persistent illness
  6. In this case constellation, the employee is usually on sick leave for a longer period of time at the time of termination after illness. Even in this case, there is a prognosis that the incapacity to work will continue for a long time. However, in contrast to permanent illness, it is not possible to predict whether the employee will be able to work again in the foreseeable future. The employer is therefore in a very uncertain situation with regard to the employee, which is only reasonable under certain conditions. Therefore, in these cases, too, the examination of an impairment of interests under consideration of the interests is of great importance. When weighing up the interests, the social situation of the employee must be taken into account to a greater extent. This concerns, for example, age, length of service, the situation on the labour market and similar aspects.

  7. Reduction in benefits due to illness
  8. Also in this case constellation, the prognosis, the weighing of interests and the impairment of of interests. As a rule, a reduction in performance always represents an impairment of employer interests. However, when weighing up the interests, the last resort principle is also applied here. If the employee can rely on be assigned to another job that corresponds to his reduced abilities due to illness, is the termination after illness is not the mildest remedy.

5. The invalidity of a termination after illness

The effectiveness of a dismissal after illness by the employer can also fail due to further requirements. For example, if the employer in a company with a works council did not consult the works council before giving notice of termination, the termination is therefore invalid. Even if specific requirements for terminations of certain employee groups such as for example in the case of severely handicapped persons, this will generally render a termination of employment invalid. after illness. The same applies to violations of the written form requirement for terminations, failure to state the statutory period of notice or shortcomings in the signature of the letter of termination.

A prior warning is not necessary for the effectiveness of a termination after illness. Since this termination is due to personal reasons for which the employee is not responsible, a previous warning is obsolete.

6. Is an extraordinary dismissal possible after illness?

Dismissals due to illness are usually ordinary dismissals. This means that there is a notice period in which the employment relationship expires. Extraordinary notices of termination, on the other hand, are usually terminations without notice.

An extraordinary termination after illness is only possible under very specific conditions and very rarely legally effective. Extraordinary termination after illness is an absolute exception. Case law assumes such a possibility in the case of very serious burdens on the employer due to the illness. These burdens must result in the employment relationship no longer making sense for the employer.

7. Severance pay in the event of termination after illness

Dismissal after illness is a complex matter for the employer. The termination can be invalid for many reasons. Since many individual questions must be clarified, Dismissals after illness often result in lengthy legal disputes. Here play in particular, health forecasts and balancing of interests in individual cases play a key role. In the case of a general termination and thus also in the case of a termination after illness, you are not automatically entitled a severance package. You have no general entitlement to it. This does not apply if such a severance payment is provided for in an employment contract or in a collective agreement

Nevertheless, in order to avoid longstanding legal disputes and the associated uncertainties, many employers agree to a severance agreement. This is often suggested by the labour judges already in the first appointment of the conciliation hearing.
However, you only have the possibility to receive a severance pay if you preserve your legal options after a dismissal after illness. The three-week period for filing the action for protection against dismissal is particularly important in this respect. The three-week period begins with the receipt of the notice of termination after illness. You should therefore have every termination after illness legally examined and file an action for protection against dismissal in good time. Termination agreement - get legal advice beforehand legally!

Some employers try to avoid legal disputes with the employee in exchange for severance pay conclude a mutually agreed termination agreement. You will not be dismissed, but will agree contractual agreement with the employer on the termination of the employment relationship.Such a termination agreement can have major disadvantages for you as an employee. Among other things, this involves the offsetting of severance payments against other social benefits. In such a case, the employment office will assume that you have voluntarily given up your job. Therefore, do not sign a termination agreement before it has been legally verified. In these cases, do not be tempted by severance payments, but rather allow the possibility of a Examine severance payment in connection with an action for protection against dismissal.

Conclusion: A termination after illness is not always effective and a severance payment is possible!

A termination after illness must meet many formal and substantive requirements in order to become effective. In particular, the requirement of a company integration management not only for people with disabilities or severe disabilities. Depending on the circumstances of the individual case, a severance payment may therefore be agreed in a labour court procedure. In this context, it is important for you to file an action for protection against dismissal in good time within 3 weeks after receipt of the notice of termination. In any case, please leave any termination after illness legal review. Very often the termination is not effective.

Do you have a question about termination?
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Do you have a question about termination?
Arrange a free callback appointment with an expert.