LAG judgment: Dismissal due to frequent short-term illnesses

If an employee is regularly absent from work due to frequent short-term illnesses, they can be dismissed by their employer. This was decided by the Düsseldorf Regional Labor Court in a ruling on May 17, 2022(14 Sa 825/21). The competent judges based their decision, among other things, on a negative health prognosis for the employee and an impairment of the employer's operational interests.

Frequent illness: dismissal justified for flight safety assistant?

In May 2022, the Regional Labor Court of Düsseldorf made a landmark decision regarding possible dismissals due to frequent short-term illnesses. In the specific case, an employee working as an aviation safety assistant complained about his dismissal with effect from March 31, 2021. The plaintiff had been employed by the company since 2018 and had been off sick for a total of 36 working days in the following year and 82 days in 2020. The reasons for the sick notes varied, and the employer continued to make continued remuneration payments. The plaintiff, who was employed in a 6/2 shift system, received an average monthly salary of € 2,661.40 gross.

The plaintiff agreed to the invitation to a meeting as part of the company integration management (bEM), but refused to involve the works council and the integration office. After the meeting on October 29, 2020, in which the employee declared that he was fully fit for work again, the company integration management was terminated by mutual agreement. However, further periods of incapacity to work followed, which is why the employer terminated the employment relationship with effect from March 31, 2022 by letter dated February 25, 2021.

The employee appealed against this with an action for protection against dismissal. The plaintiff gave two reasons for this: firstly, there was no negative health prognosis and the reference period was too short, and secondly, a new BEM was necessary before the dismissal.

LAG Düsseldorf: Negative health prognosis and sufficient reference time given

The competent labor court upheld the claim(12 Ca 1365/21); in the appeal proceedings, the competent judges ruled in favor of the defendant. An appeal is permitted. The dismissal of February 25, 2021 is therefore effective for the time being and the employment relationship was terminated on March 31, 2021. The Düsseldorf Regional Labor Court affirmed a negative health prognosis. Furthermore, the reference period of two years is a sufficient basis for a negative health prognosis. A possible impairment of the company's interests was given by the former employee's not inconsiderable susceptibility to illness and the continued payment of wages. The employee's predicted absence of at least 36 working days leads to acceptable continued remuneration costs of more than six weeks (31.5 working days).

There is no reason to assume that the continued remuneration costs will decrease in the future. In addition, the dismissal is necessary and also proportionate, as no less severe means of reducing the employee's absences is apparent. A second bEM, as requested by the plaintiff, was not necessary prior to the dismissal. The properly conducted BEM from the fall of 2020 has been completed and is not flawed, as the employer and employee had agreed that the search process should be terminated.