What is an illness-related dismissal?
An illness-related dismissal is a sub-type of person-related dismissal, valid only under strict conditions – illness alone is not a ground for dismissal. Within the scope of the Dismissal Protection Act (KSchG) the dismissal must be socially justified.
The three BAG conditions
- 1. Negative health prognosis: at the time of dismissal, further significant absences must objectively be expected.
- 2. Significant impairment: the absences must significantly impair operational or economic interests.
- 3. Balancing of interests: the balance must fall in the employer's favour.
The role of BEM
Before an illness-related dismissal, the employer must generally have offered a company integration management (BEM). Without it, the employer bears the difficult burden of proving that a BEM would not have produced milder means – such as a phased reintegration or an adapted workplace.
Prevention instead of dismissal
Since mental illness causes the longest absences, the most effective approach is to prevent it. The psychological risk assessment under §5 ArbSchG systematically uncovers the stressors behind long-term absences – reducing the cases that ever become a dismissal question. Learn more →
