When Do Frequent Short-Term Illnesses Justify a Health-Related Dismissal?

Off sick for a few days here and there — and now there's a dismissal in the post? I explain when frequent short-term illnesses really are enough, and when they are not.

Over the past year you were off sick for a few days now and then — a bout of flu, a bad back, a stomach bug. Never long at a stretch, but it added up over time. Now your employer has dismissed you, pointing to your “frequent absences”. And you’re asking yourself: is he even allowed to do that, simply because you were signed off more often than most?

In short

Yes, this can be a valid dismissal — but only if three conditions are met. All three must be present at the same time: a negative prognosis for future absences, a resulting significant impairment of the employer’s operational or economic interests, and a balancing of interests that comes down against the employee. A frequently cited rule of thumb is more than six weeks of illness per year over an extended period — but that is no automatic trigger. The legal basis is dismissal on personal grounds under section 1(2) of the Unfair Dismissal Act (KSchG). Because so much here turns on how the individual case is interpreted, a careful review of your situation is well worth it.

How I can help you

• Assessing whether your particular absences can actually support a negative prognosis
• Checking whether the employer has adequately set out the operational impairment
• Examining whether an occupational integration management process (bEM) was carried out — and what is missing if it was not
• Calculating the deadline and filing the unfair dismissal claim
• Representing you before the Rosenheim or Munich Labour Court, or whichever court has jurisdiction in your case

The three stages of assessment in detail

A health-related dismissal on the grounds of frequent short-term illnesses is a sub-category of dismissal on personal grounds under section 1(2) KSchG. I have already set out the basics of dismissal during illness in a separate article (Dismissal during illness). Here we look at the special case of frequent short-term illnesses. Unlike a conduct-related dismissal, no one is accusing you of any misconduct — you simply cannot help having been ill. That is precisely why the bar for this kind of dismissal is set high. The assessment proceeds in three steps, each building on the last:

1. A negative health prognosis. What matters is not the past as such, but what it tells us about the future. Your past absences must be of a kind that, at the time of dismissal, makes further illness on a similar scale likely. A one-off outlier — say a broken leg after a skiing accident — does not establish a negative prognosis, because it need not recur. Recurring, varied short-term illnesses over several years, by contrast, tend to point towards an unfavourable prognosis. They suggest a generally heightened susceptibility to illness.

2. Significant impairment of operational interests. The expected absences must place a noticeable burden on the business. This may be economic — for instance, ongoing continued-remuneration costs. If you exceed the six-week limit under section 3 of the Continued Remuneration Act (EFZG) in several consecutive years, the employer has to pay out that often over again. But it may equally be organisational: constant short-notice rescheduling, staffing gaps, the extra cost of cover. The employer must set out this impairment specifically; blanket assertions are not enough.

3. Balancing of interests. Only once both of these are established do we weigh things up: length of service, age, maintenance obligations, the cause of the illnesses. This also includes whether the employer considered less drastic measures — such as redeployment to a different role. This balancing exercise is the point at which many dismissals that look “strong” at first glance ultimately fail.

The six-week benchmark — what it means and what it does not

In practice, people often work from a rule of thumb. Someone who, over several years, is off sick for an average of more than six weeks a year provides a strong indication of a negative prognosis. The figure is drawn from section 3 EFZG: beyond that limit, the employer’s obligation to continue paying remuneration for a given episode of illness comes to an end. The economic burden thus becomes particularly visible.

An important point: this is a guideline value, not a threshold with automatic effect. Someone just under six weeks is not automatically protected. Someone just over it is not automatically dismissible. What is always decisive is the prognosis for the future and the specific operational impairment in the individual case. Where the absences stem from a cause that has since resolved — a successful operation, for example — even a figure that is high on paper cannot support the dismissal. The same applies where a downward trend is evident.

What the employer must do before dismissing

Before any dismissal is even permissible, the employer must consider less drastic measures. If you were unable to work for more than six weeks — continuously or repeatedly — within the last twelve months, the employer must offer you an occupational integration management process (bEM). The aim is to work out with you how to overcome the incapacity for work and prevent further absences. Possibilities include a different role, technical aids, or a phased return to work.

A missing or improperly offered bEM does not automatically render the dismissal invalid. It does, however, shift the burden of proof substantially onto the employer. He must then show, of his own motion, that even a bEM would not have produced any less drastic alternative. On top of that, he has to demonstrate that the dismissal really was unavoidable. This is a point I check first in almost every case of this kind — because many employers skip this step or go through it as a mere formality.

An example from practice

One client had been signed off for between seven and nine weeks in each of three years, spread across several short illnesses — migraines, flu-like infections, and on one occasion gastritis. The employer dismissed her on personal grounds without first having offered a bEM. He relied, in blanket terms, on “the high level of absence and the associated organisational effort”. In the claim, it was possible to show that the migraine episodes were by then well controlled with medication. The other illnesses, too, followed no discernible pattern. The negative prognosis was therefore on shaky ground. On top of that, the employer had not set out the specific operational burden in any substantiated way, and had not made up for the missing bEM. The case ended in an amicable settlement in the client’s favour.

Common mistakes

• Reacting too late. The three-week deadline for the unfair dismissal claim runs regardless of how promising the case looks.
• Not putting your own medical records in order. If you no longer know your own illness history in detail, you have nothing to set against the employer’s prognosis.
• Overlooking the bEM. Many clients have no idea that a bEM should have been offered to them — nor that its absence is a powerful argument.
• Being intimidated by the raw number of weeks. Even at more than six weeks a year, a dismissal is by no means automatically valid.
• Signing a termination agreement too hastily. Employers often apply pressure before the prospects of a claim have even been assessed.

Frequently asked questions

Do my child’s illnesses or a course of medical rehabilitation count too?

No. As a rule, only your own health-related absences count towards the prognosis. A course of rehabilitation (Kur) may need to be assessed separately in a particular case. It does not, however, automatically go into the same calculation as short-term illnesses.

Does the employer need to know my diagnoses in order to dismiss me?

No. As a rule the employer neither needs to know nor is entitled to know your diagnoses. Medical certificates only confirm your incapacity for work, not its cause. For the prognosis, the frequency and the pattern of the absences over time are enough. Causes that were one-off and have since resolved can be put forward in the proceedings in the employee’s favour.

What if I have a severe disability?

Then an additional hurdle comes into play: as a rule, the Integration Office (Integrationsamt) must approve the dismissal beforehand. The special protection against dismissal for people with severe disabilities also feeds into the balancing of interests. That makes a health-related dismissal considerably harder to push through in these cases.

Can I still produce evidence in my favour after the dismissal?

Yes. Medical evidence of an illness that has resolved, of successful treatment, or of a positive turn in your health can be put forward in the unfair dismissal proceedings. This can rebut the employer’s negative prognosis. The key is to gather these documents early, so that they can be brought into the proceedings in good time.

Does this also apply during a probationary period or in small businesses?

During the six-month qualifying period, and in small businesses where the Unfair Dismissal Act does not apply, the three stages of assessment do not operate in this way. In those settings, a dismissal on grounds of illness can happen far more easily. Whether that applies to you depends on the size of the business and your length of service, and should be checked in the individual case.

Your next step

If you are already holding a dismissal like this in your hand, one thing above all now counts: time. Whether your absences really can support a negative prognosis can usually only be judged after reviewing the file and looking at your specific illness history. The same goes for whether the employer has met his burden of proof. The three-week deadline for the unfair dismissal claim, however, keeps running regardless. You can read more about this deadline and the steps that follow under Unfair dismissal claim: mind the deadline.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-09-01.

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