Can my German employer dismiss me because of illness?
If you are sick, you cannot be dismissed. This is a common misconception. If someone is absent very often or for a very long time because of illness, the employer can dismiss him under certain circumstances. An occasional flu or infection is not enough.
Dismissal due to illness is generally only possible if the following conditions are met:
- There is a negative health prognosis.
- The absence due to illness has serious consequences for the employer’s economic and operational interests.
- The employer’s interests outweigh those of the employee.
In concrete terms, this means that the employer must not only prove that the employee was frequently unable to work in the past due to illness, but must also prove that this is also to be expected in the future. This may be the case, for example, with a chronic illness, but not with a recovered illness.
The employer’s burden of proof
The employer must also prove that absence due to illness causes significant disruption to activities and financial burdens. This can happen in smaller companies, for example, if an employee’s frequent absences reduce turnover, if other employees are often more burdened, or if the employer has to continue paying wages in the case of frequent short absences due to illness.
Another important aspect when the employer wants to dismiss because of illness is that he must prove that his interests outweigh the interest of the employee to keep his job. This aspect must be assessed differently in the case of a serious illness in a long-term, problem-free employment relationship than in a short employment relationship characterised by frequent absences due to illness.