Germany: Termination due to frequent short-term illnesses

LAG Mecklenburg-Vorpommern (5th Chamber), judgement. V. 07.05.2024- 5 Sa 56/23

Effective ordinary termination for personal reasons

In the years 2018 to 2022, the employee was off sick for between 40 and 44 working days per year, and only 33 working days in 2020. The employer continued to pay remuneration for all periods of absence. In 2019, the employee did not respond to two offers to conduct an operational reintegration management (betriebliches Eingliederungsmanagement, BEM). In 2020 and 2021, both parties carried out a BEM. The employee rejected a further offer from the employer in 2022. After notifying the works council, the employer then terminated the employment relationship with due notice.

The Schwerin Labour Court had already dismissed the employee's action against dismissal. The LAG confirmed this decision. According to the court, frequent short-term illnesses can justify a negative health prognosis, especially if there have been regular and significant absences in the past (see the absences in the specific case above). Even if these illnesses have different causes, this may indicate a general susceptibility to illness that is prognostically persistent. A reference period of at least three years is required in forming the health prognosis.

The court affirmed the negative prognosis, as the employee could not refute it. In the specific case, there were no comprehensible reasons why the respiratory illnesses, as claimed by the employee, would no longer occur in the future or would no longer occur to the same extent. The employee had not submitted a medical certificate. The employee had also only claimed that his orthopaedic illnesses had healed. However, there was no medical assessment of this.

The court recognised the operational impairments caused by the employee’s absences as significant. In addition to the high costs of continued remuneration, the employer often had to organise substitute employment at short notice, which led to additional costs and organisational effort. The termination was also justified after weighing up the interests of both parties, particularly as no milder measure to reduce the absences was apparent.

Conclusion

The decision of the LAG makes it clear that frequent and significant absences can justify dismissal for personal reasons. The court provides reasonably practical criteria in relation to the specific facts of the case. In particular, it is initially sufficient for the employer to explain the (significant) absences and claim that corresponding absences are to be expected in the future. It is then up to the employee to present a positive prognosis for the development of the illness and, if necessary, to release their doctors from their duty of confidentiality. These criteria may also help curb occasional collusive collaboration of doctor and patient in falsely claiming frequent illness-related absences in legal practice.