While it is a relatively widespread misconception that employees cannot be dismissed while they are sick, dismissal due to illness does require certain conditions be fulfilled.

Employers can potentially dismiss employees even during a period of illness under certain circumstances. In fact, the illness can even be the reason for the employee’s dismissal. Nevertheless, certain conditions need to be fulfilled for this to happen. For example, there needs to be a negative health prognosis, i.e. the circumstances need to be such that it appears likely the employee will go through further periods of illness within the scope of what he has experienced to date. Additionally, the anticipated absence from work due to illness must significantly disrupt the employer’s operational and financial interests, and it needs to be established following a thorough weighing up of interests that it is no longer reasonable to expect the employer to put up with this disruption. We at the commercial law firm GRP Rainer Rechtsanwälte note that it is only when these conditions have been met that notice of dismissal due to illness can be effectively issued.

That is why it is important to carefully assess whether these conditions have been met before issuing notice of dismissal due to illness. Otherwise, as is clear from a ruling of the Landesarbeitsgericht (LAG) Mecklenburg-Vorpommern [Regional Labour Court of Mecklenburg-West Pomerania] from March 7, 2017, the notice will be invalid (Az.: 2 Sa 158/16).

In the instant case, the employee in question had been employed at the relevant company for around 12 years. Yet her periods of absence from work due to illness became more frequent between 2011 and 2015. Citing various reasons, including a pinched nerve in her elbow, back trouble after falling on a set of stairs, and psychological problems following her divorce, the employee was absent from work for a total of about 400 days during this period. She also refused to participate in the company’s reintegration programme. Finally, the employer issued notice of dismissal. However, the employee’s action for wrongful dismissal was successful.

The LAG Mecklenburg-Vorpommern took the view that there was not enough evidence pointing towards a negative health outlook. It held that tissue and skeletal injuries resulting from an accident normally heal and therefore cannot form the basis of a prognosis indicating subsequent periods of absence. The Court went on to say that even life crises such as a divorce are usually temporary and do not necessarily lead to further periods of absence. The LAG thus concluded that there was no negative health prognosis.

Whether notice of dismissal due to an illness is effective or not depends on the circumstances of each individual case. Accordingly, the notice ought to be thoroughly prepared. Lawyers who are experienced in the field of employment law can advise employers.

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