Employment Law2026-10-22

Employee Repeatedly Off Sick: When a Sickness-Related Dismissal Will Hold Up

High absence levels alone do not justify a dismissal. The employment tribunal applies a three-stage test, and before all of it comes occupational integration management. What you, as the employer, need to document before you give notice.

An employee has been off and on sick for years: a few days here, a fortnight there, every year well beyond the six weeks for which you, as the employer, keep paying their salary. Or they have been continuously unwell for many months, and no one can say whether or when they will return. Both put a strain on the business, and both can justify a dismissal. But it is the most demanding dismissal our employment law recognises, precisely because the illness is no fault of the employee’s. Give notice without proper preparation and you will lose before the employment tribunal.

In brief

A sickness-related dismissal is a personal-grounds dismissal under § 1 Abs. 2 KSchG. The employment tribunal applies a three-stage test. First, a negative health prognosis — a legitimate expectation that the absences will continue in the same way. Second, a substantial impairment of your operational interests, usually continued-pay costs for more than six weeks a year or genuine disruption to the running of the business. Third, a balancing of interests, in which the length of service, the employee’s age and the cause of the illness all count. Before any of this comes occupational integration management under § 167 Abs. 2 SGB IX. It is not a formal precondition of the dismissal, but if you fail to carry it out, you must prove to the court that it would have made no difference. That almost never succeeds.

The legal position

First stage: the prognosis. What matters is the position at the date of dismissal. With frequent short-term illnesses, the absences of recent years serve as an indicator of what is to come; in practice the last three years are considered. If absences exceeded six weeks in each of those years, that points to a negative prognosis. Illnesses that have healed and cannot recur are left out of account: an accident, a successful operation, a one-off infection. With a long-term illness, the prognosis is negative where a recovery of fitness for work cannot be expected within the next 24 months; a wholly uncertain prognosis counts the same way. You are not permitted to ask for the diagnosis. If the employee claims a favourable prognosis during proceedings, they must release their doctors from the duty of confidentiality.

Second stage: the impairment. The absences must lead to a substantial impairment of the business. There are two routes: disruption to operations — for instance where orders go unfulfilled or colleagues must repeatedly step in — and economic burden. The economic burden lies in continued pay: under § 3 Abs. 1 EFZG you keep paying the salary for up to six weeks per illness. Where the continued-pay costs are likely to exceed six weeks a year going forward as well, the impairment is substantial. With a long-term illness where no continued pay is due, the impairment lies in the uncertainty, which makes it impossible for you to plan.

Third stage: the balancing exercise. Here the length of undisturbed service, the employee’s age, any maintenance obligations, the cause of the illness (illnesses caused by the work weigh against you) and the question of whether you could bridge the absences by reasonable means all count. An employee with 25 years’ service and an injury sustained at work stands in a very different position from one with two years’ service and a shifting pattern of short-term illnesses.

Before all of it: integration management. § 167 Abs. 2 SGB IX obliges you to offer every employee — not only those with a recognised disability — occupational integration management as soon as they have been unfit for work for more than six weeks within a single year, whether continuously or on repeated occasions. The aim is to establish how the incapacity for work can be overcome, how further incapacity can be prevented and how the job can be preserved. The Federal Labour Court does not regard integration management as a formal condition of the dismissal’s validity, but as a concrete expression of the principle of proportionality: if you have failed to offer it, you bear the extended burden of showing that even integration management could not have identified any milder measure — such as a different post, altered working hours or assistance from the pension insurance body. A blanket assertion that there was no alternative will not do (BAG, Urteil vom 20.11.2014, 2 AZR 755/13, bundesarbeitsgericht.de). In practical terms: without a properly offered integration management process, the dismissal is very hard to sustain.

What “properly” means. The invitation must be in writing and must inform the employee of the aims of the procedure, that participation is voluntary, and what data will be collected and how it will be used. The works council takes part, and in the case of employees with a recognised disability so does the disability representative; with the employee’s consent, the company doctor may be involved too. If the employee declines the offer, you have discharged your duty and the procedure ends without any disadvantage to you. If they take part, document every suggestion and why it was or was not workable.

No warning, but the works council and the authority. You do not need a prior warning, because the employee cannot control their conduct. The works council must be consulted under § 102 BetrVG; give it the absence figures, the continued-pay costs, the outcome of integration management and your prognosis. If the employee has a recognised disability or equivalent status and has been employed for more than six months, the dismissal requires the prior consent of the Integration Office (§ 168 SGB IX). You may also give notice while the employee is currently unfit for work; the law recognises no prohibition on dismissal during illness.

Time limits

The dismissal is an ordinary dismissal with the notice period under § 622 BGB or the contract of employment; with long service that will be several months to the end of a calendar month. Continued pay ends under § 3 Abs. 1 EFZG after six weeks per illness; for the same illness a fresh six-week period only begins once the employee has gone six months without suffering from it, or twelve months have passed since the onset of the first incapacity. Integration management must be offered as soon as the six weeks in a year are exceeded — not only in the run-up to a dismissal; if you have failed to do so year after year, you can make it up shortly before the dismissal, but you must then expect the court to scrutinise how genuine the offer was. The employee has three weeks from receipt of the dismissal to bring a claim (§ 4 KSchG).

How to proceed

Prepare the absence record. For each year: the number of illnesses, the days, the continued-pay costs in euros, and the days without continued pay. At least the last three years.
Take out illnesses that have healed. Anything the employee has told you was a one-off does not count towards the prognosis.
Offer integration management, in writing, with all the required information. Document the refusal or the outcome.
Consider milder measures and record them. A different post, a different shift, part-time work, technical aids. Each option considered, with the reason it is ruled out.
Quantify the impairment. Continued pay over recent years and the prognosis for the years to come; operational disruption with examples.
Consult the works council and apply to the Integration Office where relevant.
Give notice with the ordinary notice period, in writing, with proof of receipt.

Example

A manufacturing business with 40 employees has a machine operator who has been there for ten years and is 48. Absences: in 2024, eight illnesses over 51 days; in 2025, seven illnesses over 58 days; in 2026 up to October, five illnesses over 44 days — continued pay beyond six weeks every year, mostly colds, back problems, stomach bugs. There has never been an integration management process. The managing director wants to give notice. My advice: not yet. First the written invitation to integration management, with the works council; then the meeting; then an assessment of a different post without shift work. If the employee declines or the procedure leads nowhere, the dismissal will hold up three months later: the prognosis is negative, the costs exceed six weeks a year, and with ten years’ service and an age of 48 the balancing exercise does not come out inevitably in the employee’s favour. Had the managing director dismissed at once, he would have had to prove to the court that no integration management would have changed anything. He would have had no basis whatsoever for doing so.

Common mistakes

Treating absences as the prognosis. The past is only an indicator. Count a healed illness towards it and your prognosis is wrong.
No integration management. The single most common reason sickness-related dismissals fail.
An invitation without the required information. A chat “about your absences” with no mention of the aims, the voluntary nature and the use of data is not integration management.
Asking for the diagnosis. You are not allowed to, and it does not help you; the point is the absences, not the medical findings.
Milder measures not documented. What counts before the court is what you considered and why you rejected it, not what you had in mind.
Consulting the works council on half the facts. If the prognosis or the outcome of integration management is missing from the consultation, the dismissal is invalid on formal grounds.
Issuing a warning. It does not fit an illness and shows the court that you have confused the ground for dismissal.

Frequently asked questions

Can I give notice while the employee is signed off sick?

Yes. There is no prohibition on dismissal during incapacity for work. The dismissal need only meet the requirements for a sickness-related dismissal and reach the employee; the three-week deadline for their claim runs during illness as well.

Is integration management compulsory?

Under § 167 Abs. 2 SGB IX, yes — as soon as an employee has been unfit for work for more than six weeks within a year. Without integration management the dismissal is not automatically invalid, but you must then prove that it would not have revealed any alternative. In practice that is next to impossible to do.

What happens if the employee declines integration management?

Then you have discharged your duty. Participation is voluntary; you must not hold a refusal against the employee, but it removes the extended burden of proof from you. Document the invitation and the refusal.

How many sick days does it take for a dismissal to hold up?

There is no fixed number. The courts look at whether the absences exceeded six weeks in each of the recent years and whether that is likely to continue. What is decisive is the prognosis and the costs, not a threshold figure.

Do I need to issue a warning first?

No. A sickness-related dismissal is on personal grounds; the employee cannot control the illness, so a warning would be pointless. Its place is taken by integration management as the milder measure.

Your next step

A sickness-related dismissal is won by the employer who prepared for it two years in advance: absences cleanly recorded, integration management offered, alternatives considered and everything documented. I will look over your absence record, tell you whether the three stages hold up today or what is still missing, and support the integration management process through to the dismissal — nationwide, by video or telephone. You can read about how I represent employers in employment law on my practice-area page. Tell me about the absences over the last two years and I will tell you whether a dismissal will hold up.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-10-22.

Christian Czirnich, Rechtsanwalt (attorney at law), Kirchseeon near Munich

Tell me the sick days of the last two years and I will say whether a dismissal holds.

I read every message myself and usually reply on the next working day. What you write to me is covered by legal professional privilege from the first word, even if no engagement comes about. The initial assessment is free of charge.