An employer is not allowed to dismiss an employee simply because they are on long-term sick leave. A dismissal on grounds of illness is only permissible if the strict conditions for “dismissal for personal reasons” (personenbedingte Kündigung) under § 1 para. 2 of the Dismissal Protection Act (Kündigungsschutzgesetz – KSchG) are fulfilled.
Long absence or repeated sick leave
There must be a clearly identifiable period of absence (for example, continuous incapacity for work over several months), or frequent, recurring sick leaves in short intervals that seriously disrupt the workflow (Hensche).
Negative prognosis of recovery (Prognoseprinzip)
A doctor’s certificate or medical report must indicate that the prospects of your permanent or sufficiently stable return to work are uncertain. In other words, the likelihood that you will recover enough to perform your job reliably within a reasonable period is low or practically non-existent (Lecturio).
Substantial impairment of operational interests
There has to be a real, significant burden for the company, for example:
substantial costs due to prolonged continued remuneration during sickness,
disruptions to production or service processes,
serious difficulties in compensating for your absence organisationally or through replacement staff.
If these burdens become too heavy, continued employment under the existing contract may be considered unreasonable for the employer (Industrie- und Handelskammer).
Exhaustion of “less severe measures” (Ultima-Ratio-Prinzip)
Before a dismissal for reasons of illness is considered, all reasonable and less severe alternatives must be examined, for example:
transferring you to a less physically or mentally demanding position,
temporarily reducing working hours or modifying your range of duties,
referring you to medical rehabilitation or vocational reintegration measures that could enable your return to work.
If there is a reasonable and practically feasible alternative, a dismissal is generally unlawful. Only where no such alternative exists in practice can termination be regarded as a last resort.
Balancing of interests
In a final step, the labour court weighs up:
the employer’s interest in avoiding operational disruption and financial loss, and
the employee’s interest in recovery and in not losing their livelihood (the job).
Only if the employer’s interests clearly outweigh those of the employee can the dismissal be considered “socially justified” within the meaning of the KSchG (Wikipedia).
Additional procedural requirements
The works council (Betriebsrat), if one exists, must be consulted before any dismissal is issued.
The applicable notice periods must be observed and the dismissal must be given in the proper written form.
The employee has the right to challenge the dismissal by filing a claim (Kündigungsschutzklage) with the labour court (Arbeitsgericht) within three weeks of receiving the notice.
Conclusion:
Being on long-term sick leave is not, by itself, sufficient for a lawful dismissal.
The strict conditions for a dismissal for personal reasons must be met: significant absence, negative prognosis, substantial operational detriment, exhaustion of milder measures, and a balancing of interests in favour of the employer.
Unless the situation is truly extreme (for example, a permanent illness that makes future work practically impossible), an employer may not terminate your contract solely because of your illness.
The website’s team of writers and editors strives to provide accurate information based on thorough research and consultation of multiple sources. Nevertheless, errors may occur or some details may be incomplete or not fully verified. Therefore, please regard the information contained in these articles as an initial point of reference and always contact the competent authorities for definitive and reliable information.
