Dismissal: Can I be dismissed while I am ill?

Created: 12/30/2022, 9:08 am

By: Carina Blumenroth

If you're sick, you can't be fired - that's a myth.

Under certain conditions, you can be dismissed during and because of illness.

You are ill and have properly reported sick to your boss and informed them of the expected duration.

If your sick days add up, it is possible that you will receive notice of termination.

This is possible, for example, in the case of frequent brief illnesses with personal termination.

However, it is not that easy - precise considerations have to be made beforehand, and the situation of the employees is taken into account, among other things - age and length of service, for example, play a role.

Termination during sick leave is possible

A sick note does not automatically protect you from dismissal.

© Zoonar.com/Wolfilser/Imago

The "Yellow Certificate", which you probably know from the past when you sent your employer the certificate of incapacity for work, does not protect you from dismissal and its expiration date is approaching.

From January 2023, you no longer have to send your sick leave to your employer. In the event of illness, your employer will ask your health insurance company and receive the data electronically.

However, what does not change is the fact that you can be dismissed due to illness.

On the

writes union lawyer Dr.

Till Bender: "Contrary to rumors to the contrary, the employer is not prohibited from giving notice of termination during an inability to work." However, for this to be legally binding, the following conditions must be met:

• Personal termination: A sub-item in this case is termination due to illness.

  As the lawyers

  Bietmann

  describe on their own website, a warning is not required for termination in this case.

  Possible reasons for termination: repeated short-term illnesses, long-term illnesses with many sick days, reduced performance due to illness, permanent inability to work.

• Bietmann

  reports that most layoffs due to illness are due to frequent short-term illnesses lasting several days or weeks.

  In this context, the work performance of employees can decrease.

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Is dismissal in case of illness socially justified?

It is then checked whether the termination is socially justified, for which various factors are examined.

• Negative health prognosis: In the long term, absenteeism and additional sick days must be expected.

  In the case of long-term illnesses, there must be no prospect of recovery or regaining full working capacity for a termination to have legal force.

  The type of illness is also checked, with a distinction being made between recurring illnesses and one-off illnesses, such as absence due to an appendectomy.

• The operational interests of the company are adversely affected.

  Reasons for this can be "a lack of planning security, disruptions to operations or high costs of continued wage payments," reports

  Bietmann

  .

• Weighing of interests: The dismissal must be the mildest means, if this is the case and the interests of the company outweigh those of the employee, a dismissal can be effective.

  The following must be taken into account: the duration of the employment relationship, the causes of illness at work (accident at work or occupational disease) and age and marital status.

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How often can I be sick without jeopardizing my job?

If you have frequent short-term illnesses or have permanent and long-standing illnesses, you should expect termination.

In such cases, labor courts examine the course of the illness over the past three years, as union lawyer Dr.

Till Bender

informed on the

"If the employee was sick for more than 30 days in three years, there is a risk of termination," Bender continues.

If employees are ill for more than 30 days or six weeks, this is considered unreasonable for the employer.