A widely held misconception: that dismissal during sick leave is automatically illegal in Germany. It isn’t. German law does not prohibit dismissal during incapacity to work — but it does impose specific procedural and substantive hurdles, and the practical settlement value of dismissals issued during sick leave is typically substantially higher than baseline. Here is how it actually works.
The general rule: sick leave does not block dismissal
Unlike pregnancy (§ 17 MuSchG) or parental leave (§ 18 BEEG), illness does not create absolute dismissal protection. The employer can issue a dismissal notice while the employee is on certified sick leave, including:
- Operational dismissal (betriebsbedingt) as part of restructuring.
- Behavioural dismissal (verhaltensbedingt) for misconduct unrelated to the illness.
- Personal dismissal (personenbedingt) based on the illness itself, where strict conditions are met.
The 21-day filing deadline under § 4 KSchG runs the same way as for any other dismissal. Being on sick leave does not pause this clock. This is the most common trap: employees on sick leave see the dismissal letter, assume they have „time to deal with it later,” and miss the filing deadline.
Personal dismissal due to long-term illness
Where the employer wants to dismiss because of the illness, the BAG case-law sets strict requirements (so-called „personenbedingte Kündigung” wegen Krankheit). Three categories:
Frequent short-term illness
Many short absences over an extended period. Requires:
- Negative health prognosis: medical evidence (not just historical absence data) that the pattern will continue.
- Substantial operational disruption: the absences materially impede operations.
- Interest weighing (Interessenabwägung): the employer’s operational interest outweighs the employee’s protection interest, factoring in tenure, age, family obligations, etc.
Long-term single illness
One extended absence. Requires:
- Negative prognosis for return: evidence that recovery to full work capacity is not foreseeable within a reasonable timeframe (typically 18-24 months).
- Operational impossibility: the position cannot reasonably be left vacant or covered.
- Interest weighing.
Permanent disability
Reduced capacity to perform the contractual role. Requires:
- Demonstrable inability to perform substantial parts of the role.
- No reasonable accommodation available (workplace adaptation, reduced hours, alternative role).
- BEM procedure (betriebliches Eingliederungsmanagement) must have been offered and (if not declined) carried through.
BEM — the often-missing prerequisite
Most employers either skip BEM entirely or perform it as a procedural box-tick. In our practice, properly executed BEM is rare enough that it is the single most reliable defense against illness-related dismissal.
Continued pay during illness (§ 3 EFZG)
Independently of dismissal questions: during sick leave, the employer must continue full salary for up to 6 weeks per illness episode (Entgeltfortzahlung under § 3 EFZG). After 6 weeks, the Krankenkasse takes over with Krankengeld at approximately 70% of gross (capped). For long-term illness:
- Krankengeld runs up to 78 weeks within a 3-year period.
- After Krankengeld, transition to Erwerbsminderungsrente (disability pension) or Bürgergeld may apply.
A dismissal issued during the Entgeltfortzahlungszeitraum doesn’t relieve the employer of the continued-pay obligation — wages continue until the dismissal-effective date or the 6-week cap, whichever comes first.
The strategic position on dismissal during sick leave
From the employee’s perspective, dismissal received during sick leave creates several leverage points:
1. The BEM prerequisite
Most illness-related dismissals fail because BEM was either skipped or defectively executed. We routinely identify this as the primary attack line.
2. The negative-prognosis evidentiary burden
The employer must prove the prognosis — typically requiring medical reports from a company doctor (Betriebsarzt) or specialist evaluation. Generic „you’ve been absent a lot” arguments don’t suffice.
3. Discrimination risk (AGG)
Dismissal because of illness can constitute disability discrimination under the AGG, particularly where the illness has crossed the threshold of becoming a recognized disability. Where this applies, the employee can claim damages under § 15(2) AGG in addition to the dismissal-protection claim.
4. Settlement multiples
Illness-related dismissals typically settle at higher multiples than ordinary operational dismissals — 0.8 to 1.5 monthly per year of service is common, vs. 0.5 baseline.
What to do if you receive a dismissal while on sick leave
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Day 1: read the letter, note the date
The 21-day filing clock runs from receipt of the letter, not from your return to work. Note the exact date of receipt.
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Day 1-3: gather your records
Sick-leave certificates (Arbeitsunfähigkeitsbescheinigungen), Krankenkasse correspondence, any BEM-related letters or invitations from the employer, your contract.
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Within 1 week: legal review
Send the materials to an employment lawyer. The BEM compliance, prognosis evidence, and dismissal type assessment determine the strategy.
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Within 21 days: Kündigungsschutzklage if challenging
Filed at the Arbeitsgericht. Mandatory to preserve the challenge. Settlement at Gütetermin typically 4-8 weeks later.
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Continue medical treatment
Your incapacity status during the dismissal-protection litigation is medically governed by your treating physician, not by the dismissal procedure.
Special situations
Dismissal during the first 6 weeks of illness
The employer pays continued salary regardless. This is sometimes when employers strike — the cost-of-keeping-the-employee briefly aligns with the cost-of-dismissing. The employee’s rights are unchanged.
Dismissal during Krankengeld phase
The employee is on Krankengeld (~70% of gross). Dismissal removes the employer’s residual obligations but doesn’t affect Krankengeld eligibility (the Krankenkasse continues payment until medical capacity returns or the 78-week cap is hit).
Dismissal after long-term illness (Krankengeld exhausted)
The employee has either returned to work or transitioned to disability pension. If returned to reduced capacity, the BEM and accommodation obligations apply. If still incapacitated and Krankengeld exhausted, the employer’s negative-prognosis case may be objectively strong — but procedural defects often still provide leverage.
Acute illness during ongoing dismissal-protection litigation
Your medical incapacity doesn’t pause the litigation. We typically coordinate hearing dates around medical realities, and Arbeitsgerichte are reasonable about postponements where supported by current Arbeitsunfähigkeitsbescheinigungen.
Severance ranges in illness-related dismissals
In our actual settled cases:
- Operational dismissal during routine sick leave: typically 0.6–0.8 monthly per year — the illness adds modest leverage.
- Personal dismissal for long-term illness with proper BEM and clear negative prognosis: 0.5–0.8 monthly per year — employer’s case is strong; severance reflects this.
- Personal dismissal with BEM defects: 1.0–1.5 monthly per year — defect makes dismissal vulnerable.
- Dismissal with AGG-disability angle: 1.5+ monthly per year plus separate AGG damages claim.
Frequently asked questions
I’m on sick leave and just received a dismissal notice. Should I see a doctor or a lawyer first?
Both, in that order. Get a current AU certificate and your treating physician’s documentation; then contact an employment lawyer within the 21-day window.
My employer never offered BEM. Is the dismissal automatically void?
Not automatically — but it’s a powerful argument. The employer must demonstrate why BEM was unnecessary in your specific case, which is a high bar. In most cases, missing BEM is fatal to the dismissal.
Can I refuse to discuss my medical condition with the employer?
Generally yes. Detailed medical information is protected; the employer is entitled to know that you are incapacitated (via the AU certificate) but not the diagnosis. BEM participation requires only limited cooperation; refusal to engage in BEM, however, weakens your position against later dismissal.
Is „burnout” a recognized basis for dismissal?
Burnout itself is not a specific diagnosis but rather a constellation of symptoms typically tied to depressive or adjustment disorders. The medical assessment determines the legal evaluation; from a dismissal-law perspective, burnout-related illnesses are treated the same as any other.
My employer wants me to take an Aufhebungsvertrag instead of „forcing” the dismissal. Should I?
Almost never without legal review. Aufhebungsverträge during illness typically trigger Sperrzeit at the Bundesagentur für Arbeit (12 weeks of suspended unemployment benefits) unless properly structured. The apparent „mutual” framing usually disadvantages the employee. See our Aufhebungsvertrag article.
I’m on Blue Card and got sick — does my residence permit cover sick leave?
Yes — your employment status is unchanged during sick leave, including for residence-permit purposes. If the illness leads to dismissal, the standard 3-month job-search window under § 18b AufenthG applies.