An illness-related dismissal is a person-related dismissal. Where the Kündigungsschutzgesetz applies, courts test it in three stages: a negative health prognosis, a substantial impact on operational interests, and a balancing of interests. Four case groups are distinguished: frequent short-term illness, long-term illness, permanent incapacity, and lasting reduced capacity. A missing BEM does not invalidate the dismissal but substantially increases the employer's burden of proof.
At a glance
- Only relevant where the Kündigungsschutzgesetz applies, generally above ten employees and after six months of service
- Courts apply a three-stage test: negative prognosis, substantial operational impact, balancing of interests
- Four case groups with different requirements
- A missing BEM does not invalidate the dismissal but substantially increases the employer's burden of proof
- The Betriebsrat must be consulted before notice is given; without consultation the dismissal is invalid
The four case groups
- Frequent short-term illness: many short absences across several years. The operational impact usually lies in continued-pay costs and the inability to plan
- Long-term illness: one continuous absence over an extended period with an uncertain return
- Permanent incapacity: it is established that the contractual work can no longer be performed for the foreseeable future
- Lasting reduced capacity: the person works but can no longer reach the contractually owed performance
The three-stage test
- Negative prognosis: at the time notice is given, objective indicators must point to further substantial absences. Past absences are evidence of this, not proof
- Substantial impact on operational interests: disruption to operations or economic burden, for example continued pay across several years
- Balancing of interests: length of service, age, maintenance obligations, the cause of the illness, and whether milder measures existed such as transfer or workplace adjustment
FAQ
How many sick days make a dismissal possible?
There is no fixed threshold. For frequent short-term illness, the courts only accept substantial impact where absences are well above average across several years. A single annual figure does not replace the prognosis.
Must a BEM have taken place first?
The BEM is not a formal precondition. Where it is missing, the employer must show in court that a BEM would not have produced a milder measure either. That rarely succeeds. In practice the BEM is therefore the single most important step before an illness-related dismissal.
Can notice be given while someone is signed off sick?
Yes. Incapacity as such does not protect against dismissal. The substantive requirements still have to be met.
What are the alternatives?
In practice the route often runs through an Aufhebungsvertrag, because the bar for a valid illness-related dismissal is high and the outcome of a dismissal-protection case is hard to predict.
Last updated: August 2026
This article provides general information and is not a substitute for legal advice in individual cases.
