What the boss and employees need to know if they quit due to illness, law firm hasselbach

Anyone who is sick can be given notice. In this context, however, there are four simple requirements that the employer must adhere to.

Germans are reporting sick more and more often. According to studies by the Federal Employment Agency and the health insurers, employees were only absent for an average of 10.5 days due to illness in 2006; In 2010 it was already over 12 full days – and a current study assumes a record level of over 14 working days for 2012.

Sick leave is only midfield compared to our neighboring countries, but many employees underestimate the economic impact that downtime can have on the company. They often succumb to the widespread misconception that illness cannot be canceled.
Since the number of sicknesses has risen, employers are increasingly using personal dismissal to get rid of frequently or permanently sick employees. In the meantime, this is the most common case of personal layoffs and basically permitted by law. However, there are limits: as long as the employment relationship has existed for six months and more than 10 full-time employees are regularly employed in the company, statutory protection against dismissal intervenes.

Termination is only possible if it can be socially justified.

1. Long-term illnesses

In the case of long-term illnesses, a distinction is made between dismissal due to permanent incapacity to work and dismissal due to long-term illness. According to the Federal Labor Court, an illness is long-lasting after eight months. At this point, it is not foreseeable that the condition within 24 months improves, the illness-related inability to work is considered permanent. In this case, the BAG assumes that operational interests are so severely impaired that the dismissal can be justified by the duration of the incapacity to work (BAG of April 29, 1992).

2. Short-term illnesses

Short-term illnesses, however, cannot be a valid reason for termination per se. If you submit a certificate and sick notice in good time, the employee protection laws prohibit you from being put out of the door for short and justified illnesses. However, if such short-term illnesses occur again and again (especially if they are often on bridging days or the beginning of the week), the employer has a good chance of effective dismissal.

In order for such a termination to be effective, it must be based on four questions Unfair dismissal claim the court would also consider:

3. The employee becomes healthy again?

This is the so-called negative Outlook. Jurisprudence demands that there is serious concern about the health of the worker and that it is not foreseeable when the employee will be fully able to work again. In the case of frequent short-term illnesses, the prognosis must relate to whether it can be expected that it will continue in the future constant absenteeism come becomes.

However, the employer has to justify the forecast – a mere guess is not enough. Rather, there must be concrete facts to suggest that the employee will not be able to properly fulfill his employment contract in the future either. Chronic diseases are a classic case for such a justification, including alcohol and drug addiction as well as personality disorders. In the case of one-off events – such as accidents – a negative forecast can hardly be made.

If, on the other hand, it can be seen that the performance stipulated in the employment contract can never be provided again, the employer can give notice without further social justification (long-term or permanent illness). Before doing so, however, the employer must check whether another, passionate workplace is not available for the employee and, if necessary, carry out operational integration management for the employee.

4. To what extent does the failure harm the company?

The second requirement is significant impairment of the employer’s operational or economic interests due to the absence of the sick worker.

This is especially the case when a disease representative needs to be hired and specially trained. Especially when it comes to loss of production or deterioration in productivity. If the conveyor belts stand still without the employee because there is no suitable replacement for the failed employee in the company, the poor personnel planning of the employer can also be responsible. In principle, he is required to be able to react to short-term lost work. Rather, he has to prove that the illness of the employee disproportionately burdens him. This is often the case in smaller companies.

In principle, a charge can also be continued payment costs if they have to be paid for more than six weeks.

5. Another illness can be prevented?

If the absence due to illness lasted longer than six weeks within one year, § 84 Paragraph 2 SGB IX provides operational integration management which is intended to make it easier for the employee to return to his or her other job that is appropriate for the child. The employee representatives – such as the works council or the youth and trainee representatives – must be involved in this.

The lack of operational integration management does not directly lead to the ineffectiveness of the dismissal, however, it does not negatively affect the employer as a result Burden of proof and proof as part of the balancing of interests.

6. There is no other way?

The balancing of interests is – as with other dismissals – mandatory for dismissals due to illness. It is intended to prevent employers from hastily or carelessly putting their employees out the door.

In the course of the balancing, the employer has the personal circumstances of the worker (e.g. marital status, age or maintenance costs). The point of reference must always be the individual case. He also has to check to what extent the employee can be used elsewhere in the company. Factors related to the company, such as length of service or frequency and duration of previous illnesses, can also prevent dismissal from being socially justified. It is also important to consider whether the inability to work may be the result of an accident at work.

7. Conclusion

A large number of indications can ensure that termination due to illness is ineffective. For example, workers tend to have an advantage in predicting future incapacity to work. Without their consent, no employer can request information from the treating doctor. The employee himself does not have to provide the employer with information about future failures.

The only option for the employer is to obtain an expert opinion from the medical service of the employee’s health insurance company in accordance with § 275 SGB V. To do this, he has to doubt the inability to work and may get details about the disease that suggest a future prognosis.

The employer must first explain his reasons in court. Only then is the employee obliged, on the to respond to the submitted facts and, if necessary, to submit a counter notification. In any case, the employee should not simply sign a termination agreement because this can lead to a lock-up period for unemployment benefits or the settlement of severance payments.

In any case, employers should seek advice from a labor lawyer prior to termination due to illness to ensure legal certainty of the termination. The same applies to employees who are affected by dismissal due to illness.


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Christina Cherry
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