Dismissal due to illness: when a dismissal because of illness is valid

Dismissal due to illness: what it is

The Protection Against Dismissal Act recognises reasons relating to the person, to conduct and to urgent operational requirements (Sec. 1 (2) sentence 1 KSchG). A dismissal due to illness is a dismissal for personal reasons: you are not accused of anything, you simply cannot perform your work as the contract provides.

Two things follow from this:

• Ordinary dismissal: A dismissal because of illness is, as a rule, given with a notice period. An extraordinary dismissal only comes into consideration in narrowly limited cases, above all if you are protected from ordinary dismissal (see special cases).
• No formal warning: Unlike a conduct-related dismissal, your employer does not have to give you a formal warning (Abmahnung) beforehand, because you cannot control your illness.

"Because of" is not "during": If you are dismissed while you are signed off sick, that alone says nothing about the reason. Sick leave does not protect you from a dismissal for other reasons. What applies then is explained in our guide on dismissal during sick leave. This page deals with the case in which the illness itself is the reason.

Does the Protection Against Dismissal Act apply to you?

The strict requirements below only apply if the Protection Against Dismissal Act applies to your employment. For this, two conditions must be met together:

1. Waiting period: Your employment has existed in the same business or company without interruption for more than 6 months (Sec. 1 (1) KSchG).
2. Size of the business: The business normally employs more than 10 employees, excluding trainees. Part-time staff count as 0.5 (up to 20 hours a week) or 0.75 (up to 30 hours a week). For employment that began before 2004, a threshold of more than 5 employees may apply; only employees who also started before 2004 are then counted (Sec. 23 (1) sentences 2 and 3 KSchG).

Without the Protection Against Dismissal Act, i.e. in the first 6 months or in a small business, your employer may also dismiss you because of illness. There, the dismissal is only invalid because of other defects: no written form, no consultation of the works council, breach of special protection against dismissal, discrimination or conduct contrary to good faith. The notice period applies there too; for probation, see notice period during probation. The 3-week deadline for the claim applies in every case (Sec. 4 sentence 1, Sec. 23 (1) sentences 2 and 3 KSchG).

Requirements: the three stages of examination

The Federal Labour Court (Bundesarbeitsgericht, BAG) examines in established case law in three stages when a dismissal is "due to" illness (BAG, judgment of 22 July 2021, 2 AZR 125/21, para. 11). If one stage is missing, the dismissal is invalid.

Stage	Question	What the employer must show	Your starting point
1. Negative health prognosis	Is it to be expected that you will continue to be absent to the same extent in future?	Objective facts at the time of the dismissal, usually past absences	Your doctors assess your development positively, illnesses have healed or were based on a one-off event
2. Considerable impairment of operational interests	Do the expected absences place a considerable burden on the business?	Specific disruption to operations or continued pay for more than 6 weeks per year	No specific disruption, costs below the threshold, wrong items included
3. Balancing of interests	Can the employer no longer reasonably be expected to bear the burden?	Its interest in ending the employment prevails	Long employment without disruption, workplace cause of the illness, age, maintenance obligations, poor chances on the labour market

The Federal Labour Court expressly names the factors in the last row for the balancing (BAG, judgment of 25 April 2018, 2 AZR 6/18, para. 40).

Proportionality comes on top. A dismissal is not "due to" illness if there are appropriate milder means to avoid or reduce future absences. These can be an adaptation of your workplace or continued employment in another position suited to your health, but also treatment measures that a BEM has identified as useful (BAG, judgment of 7 May 2026, 2 AZR 184/25, para. 15).

Burden of proof: Your employer must prove the facts on which the dismissal is based (Sec. 1 (2) sentence 4 KSchG). For the prognosis, it may initially confine itself to setting out your past absences. Then it is your turn: it is sufficient if you state that your doctors have assessed your health development positively and release them from medical confidentiality. The release alone without this statement is not sufficient (BAG, judgment of 20 November 2014, 2 AZR 755/13, paras. 17 and 22).

The four case groups

The case law distinguishes typical case groups in which the three stages are each examined somewhat differently.

Case group	Typical case	Prognosis	Impairment	Typical counter-argument
Frequent short illnesses	Many sick notes of a few days or weeks	Absences in recent years are an indication	Continued pay of more than 6 weeks per year or disruption to operations	Illnesses healed, accidents, successful operation
Long-term illness	Unfit for work continuously for many months	Long duration is an indication that it will continue	Only if no recovery is expected in the next 24 months or there is specific disruption	Doctors expect a return, bridging with a temporary replacement possible
Permanent incapacity for work	You will never be able to do your job again	Established	As a rule, given without further ado	Another vacant position suited to your health
Reduced performance due to illness	You work, but permanently achieve considerably less	Considerable underperformance expected on a lasting basis	Performance and pay are no longer in a reasonable relationship	Underperformance not considerable, another task possible

Frequent short illnesses

If you have been ill several times every year in recent years, this points to a corresponding development in future, unless the illnesses have healed (BAG, 2 AZR 755/13, para. 17). Different diagnoses only help you to a limited extent: different illnesses can also indicate a general susceptibility to illness. It is different for absences based on a one-off event, such as an accident, or for illnesses that were successfully treated by a special therapy such as an operation. They do not support a prognosis (BAG, 2 AZR 755/13, para. 20). Rehabilitation (Reha) only after receipt of the dismissal no longer changes the prognosis (BAG, 2 AZR 755/13, para. 21).

Long-term illness

A long, uninterrupted incapacity for work is an indication that it will continue (BAG, judgment of 13 May 2015, 2 AZR 565/14, para. 14). For the second stage, this is usually not enough, because after 6 weeks the health insurance fund pays, not the employer. Uncertainty about recovery is only equivalent to permanent incapacity for work if no recovery can be expected at least within the next 24 months. The employer can typically bridge up to 24 months with a replacement hired on a fixed-term basis (BAG, 2 AZR 565/14, para. 18). If your return is in sight, for example through a gradual return to work, this helps you.

Permanent incapacity for work

If it is established that you can never again perform your contractual work, the prognosis is negative and the impairment of the business is, as a rule, given without further ado (BAG, 2 AZR 565/14, para. 18). What matters then is whether there is another position that is vacant or can be made vacant by reassignment in which you can work despite your limitation (BAG, 2 AZR 565/14, para. 34).

Reduced performance due to illness

If you are at work but, because of your illness, permanently achieve considerably less than comparable colleagues, this can also support a dismissal. The hurdles are high: slight underperformance is not enough, and the employer must prove it in a specific and measurable way.

How many sick days does it take for a dismissal?

There is no fixed number, neither in the law nor in the case law. There is, however, a guide value for the second stage: the employer is considerably impaired economically if it is likely to have to pay more continued pay every year than is owed for 6 weeks (BAG, 2 AZR 125/21, para. 22). For the prognosis, the last 3 years before the dismissal usually count; if there is a works council or staff council (Personalrat), the last 3 years before it was consulted (BAG, 2 AZR 125/21, para. 16).

Sample calculation: With a five-day week, 6 weeks correspond to 30 working days. If, in the last 3 years, you were ill with continued pay on 25, 28 and 22 working days, you are not above the threshold in any year. With 40, 75 and 37 working days, you are above it in every year. These were exactly the figures of an employee whose case the Federal Labour Court decided in 2026. The dismissal nevertheless failed because the employer could not prove that the employee had received the renewed invitation to the BEM (BAG, 2 AZR 184/25, paras. 2 and 17 et seq.).

What does not count:

• Supplements to sickness benefit that the employer pays voluntarily or under a collective agreement (BAG, 2 AZR 125/21, para. 19; 2 AZR 6/18, para. 31).
• Special payments such as holiday or Christmas pay, even if they were paid in full in years with long illness (BAG, 2 AZR 125/21, headnote and para. 21).
• Sick days without continued pay, for example in periods when you receive sickness benefit, do not burden the employer with wage costs. They can, however, play a role for the prognosis or for disruption in the business (BAG, 2 AZR 125/21, paras. 12 to 14 and 24).

Important: The 6 weeks are a benchmark for the second stage, not permission to dismiss. Above that too, the balancing of interests, milder means and the BEM count. How continued pay itself works is explained in our guide on continued pay during illness.

BEM before the dismissal: what a missing BEM means

If you were unfit for work for more than 6 weeks within one year, either continuously or repeatedly, your employer must offer you return-to-work management (Sec. 167 (2) SGB IX; since 30 July 2026, the law also mentions partial incapacity for work, but partial incapacity for work certified by a doctor under Sec. 44c SGB V only exists from 1 January 2028). How the BEM meeting works and what you should say there is explained in our guide on the BEM meeting. For the dismissal, what counts above all is:

• No BEM, although required: The BEM is not a formal requirement for the dismissal, but it gives concrete shape to proportionality (BAG, 2 AZR 755/13, para. 38). If your employer did not offer it, it must prove that a BEM would not have prevented new absences and would not have preserved the employment either (BAG, 2 AZR 184/25, para. 16). This includes that benefits from the rehabilitation providers (Rehabilitationsträger) would not have helped (BAG, 2 AZR 755/13, headnote 2).
• Renewed invitation: If you refused a BEM and were then ill again for more than 6 weeks within one year, your employer must in principle offer it again (BAG, 2 AZR 184/25, para. 18).
• Receipt of the invitation: The employer must prove that you received the invitation. Registered mail delivered to the letterbox (Einwurf-Einschreiben) using Deutsche Post's scanning procedure does not establish prima facie evidence (Anscheinsbeweis) of this (BAG, 2 AZR 184/25, paras. 21 and 25).
• Refusal: If you refuse a BEM that was offered correctly, you can hardly rely later on the fact that it was missing (BAG, judgment of 24 March 2011, 2 AZR 170/10, para. 24).

Special cases

Severe disability and equal status

If you are severely disabled, i.e. with a degree of disability of at least 50, or have equal status, your employer needs the consent of the Integration Office (Integrationsamt, the authority responsible for severely disabled employees) before the dismissal (Sec. 2, 151, 168 SGB IX). Without it, the dismissal is invalid. The protection does not apply in the first 6 months and only if the severe disability has been proven at the time of the dismissal or an application is pending (Sec. 173 (1) no. 1, (3) SGB IX). Equal status takes effect from the day on which the application is received by the employment agency (Agentur für Arbeit) (Sec. 151 (2) SGB IX). The consent of the Integration Office does not replace the BEM: it does not establish a presumption that an omitted BEM could not have prevented the dismissal (BAG, judgment of 15 December 2022, 2 AZR 162/22, headnote). If the dismissal requires the consent of an authority, the deadline for the claim only starts when its decision is notified to you (Sec. 4 sentence 4 KSchG).

Protected from ordinary dismissal and public service

If you are protected from ordinary dismissal under a collective agreement or employment contract, for example under Sec. 34 (2) TVöD or TV-L, only an extraordinary dismissal under Sec. 626 BGB remains. It too can be based on illness, but only under considerably stricter conditions and with a phase-out period (Auslauffrist) as long as the notice period would be without the protection (BAG, 2 AZR 6/18, paras. 16 and 20). For frequent short illnesses with protection under Sec. 34 (2) TV-L, the Federal Labour Court has held that there can be good cause if the employer is likely to have to pay continued pay for more than one third of the annual working days, i.e. for almost three times 6 weeks (BAG, 2 AZR 6/18, headnote and para. 39). Frequent short illnesses can be a continuing state of affairs as long as they indicate a permanent susceptibility to illness; the two-week period under Sec. 626 (2) BGB then starts again and again (BAG, judgment of 23 January 2014, 2 AZR 582/13, headnote). Who is protected from ordinary dismissal in the public service is explained in our guide on the TVöD notice period, and the basics are in our guide on extraordinary dismissal.

Fixed-term contract

Your employer can only give ordinary notice on a fixed-term contract if this has been agreed in the employment contract or the applicable collective agreement (Sec. 15 (4) TzBfG). If there is no such clause, the contract ends when the fixed term expires; a dismissal due to illness before then is not possible. For a permanent contract, the rules in this guide apply.

Mental illness

The same three stages apply to depression, burnout or anxiety disorders; there is no special rule. The prognosis is often difficult to make while treatment is ongoing, and measures from the BEM, such as a changed organisation of work, play a major role. A long-lasting illness can in individual cases be a disability; the dismissal must then not discriminate (Sec. 2 (1) SGB IX, AGG).

What a dismissal due to illness must look like

• Written form: The dismissal must be on paper with a handwritten signature. Email, fax or WhatsApp are not sufficient; electronic form is excluded (Sec. 623 BGB).
• Notice period: The period from the contract, the collective agreement or Sec. 622 BGB applies; for the employer, it is 4 weeks to 7 months depending on length of service. The table is in our guide on notice periods for employees.
• Works council: If there is one, it must be consulted before the dismissal, otherwise the dismissal is invalid (Sec. 102 (1) BetrVG). It can object, for example because you could continue to work in another position (Sec. 102 (3) no. 3 BetrVG).
• Statement of reasons: As a rule, the reasons do not have to be stated in the letter of dismissal. They come out in the proceedings at the latest.

All requirements for a dismissal with notice are in our guide on ordinary dismissal.

Received a dismissal due to illness: what to do now

Severance for a dismissal due to illness

You have no statutory entitlement to severance; Sec. 1a KSchG only applies to dismissals for operational reasons. Severance comes about in two ways:

• Settlement: Many unfair dismissal proceedings end with an agreement. The more weak points the dismissal has, such as a missing BEM or a thin prognosis, the stronger your negotiating position.
• Dissolution by the court: If the dismissal is socially unjustified but you cannot reasonably be expected to continue the employment, the court dissolves the employment on application in return for severance (Sec. 9 (1), Sec. 13 (3) KSchG). It amounts to up to 12 monthly earnings, from age 50 with 15 years of service up to 15, from age 55 with 20 years up to 18 (Sec. 10 KSchG).

Half a gross monthly salary per year of employment is often used as a basis for negotiation; see severance by years of service. The requirement is that you meet the deadline for the claim.

Unemployment benefit and benefit suspension

A benefit suspension for giving up work applies if you ended the employment yourself or gave cause for the dismissal through conduct in breach of your employment contract (Sec. 159 (1) sentence 2 no. 1 SGB III). With a dismissal by the employer because of illness, neither is the case, so a benefit suspension is usually not a risk.

It can be different if you resign yourself or sign a termination agreement. It then depends on whether you have good cause. According to the technical instructions (Fachliche Weisungen) of the Federal Employment Agency (Bundesagentur für Arbeit), this can be the case, for example, if you can no longer do the work given your capacity, or if a dismissal for personal reasons with notice to the same date had been firmly announced to you and further conditions are met, such as severance of at most 0.5 monthly salaries per year of employment (Fachliche Weisungen on Sec. 159 SGB III, 159.1.2.1 and 159.1.2.1.1). Clarify this before you sign.

However, a benefit suspension is a risk if you do not register as a jobseeker in time (Sec. 159 (1) sentence 2 no. 9 SGB III). If you are still ill at the end of the employment, you usually receive sickness benefit first; how this fits together is explained in our guide on dismissal during sick leave.