Definition
Dismissal on grounds of ill health is possible, but subject to strict conditions. Firstly, it must be foreseeable at the time of dismissal that significant absences due to illness are likely to continue in the future. Secondly, the illness must have a noticeable impact on the business – for example, through prolonged absences or costs associated with continued pay for more than six weeks per year over several years. Thirdly, a balancing of interests must show that the dismissal is proportionate. If the employer has not offered a workplace integration programme, they must provide significantly more explanation and evidence during the proceedings.
Specialist solicitor in employment law
Over 15 years’ experience in employment law
Classification under employment law
Dismissal on grounds of ill health is possible, but subject to strict conditions: a negative prognosis, significant operational disruption and a balancing of interests must all be present. Frequent short-term illnesses or long-term illness may constitute grounds for dismissal – but only under strict conditions.
Distinction from related terms
Incapacity for work (AU): Incapacity for work describes the current state of health. Dismissal on grounds of illness also requires a negative prognosis and operational disruption.
Workplace Integration Management (BEM): The BEM serves to explore options for continued employment. Dismissal on grounds of illness is often only valid if a BEM has at least been offered beforehand.
Practical tip
Before terminating an employee’s contract on health grounds, the employer is often obliged to offer a workplace integration plan (BEM) in accordance with Section 167(2) of SGB IX. If they have failed to do so, this makes it considerably more difficult for them to justify the dismissal. Be sure to ask about this specifically.
