Landesarbeitsgericht Nuremberg, Judgement of 25.11.2021, Ref. 3 Sa 67/21
In practice, dismissals in connection with an illness regularly lead to disputes. Employees often assume that a dismissal during or shortly after an incapacity to work is automatically inadmissible or at least triggers an entitlement to continued payment of remuneration. Employers, on the other hand, are confronted with the accusation that they have been dismissed due to illness. cancelled to have.
The judgement of the Nuremberg Regional Labour Court of 25 November 2021 brings important clarity to this constellation and shows under which conditions it is actually possible to speak of dismissal due to illness - and when not.
Basics of cancellation due to illness
Dismissal due to illness is not invalid per se under labour law. It can be justified for personal reasons, for example in the case of long-term or frequent illnesses. However, this must be distinguished from so-called termination for cause within the meaning of the Continued Remuneration Act.
According to Section 8 EFZG, the employer remains obliged to continue to pay remuneration even after termination of the employment relationship if the employment relationship is terminated due to incapacity for work. The decisive factor is therefore not only that the employee was ill, but whether the illness had a significant influence on the decision to terminate the employment relationship.
It is precisely this demarcation that is difficult in practice.
Termination for cause and continued remuneration
A termination for cause does not only exist if the employer expressly terminates the employment contract due to the illness. It is sufficient that the inability to work was the decisive reason for the dismissal or was an essential condition for the decision to dismiss.
For employees, prima facie evidence is usually effective here: If the dismissal occurs in close temporal connection with a reported incapacity for work, there is initially much to be said in favour of a termination for cause. However, this circumstantial evidence can be refuted.
This is precisely where the decision of the Nuremberg Regional Labour Court comes in.
The case decided before the LAG Nuremberg
In the underlying case, an employee was employed by a temporary employment agency and fell ill during her probationary period. She initially submitted a certificate of incapacity for work, but did not appear at the employer's or the hirer's premises after the expiry of the certified period and did not report sick again.
The employer then terminated the contract during the probationary period. The health insurance fund later asserted claims for continued payment of remuneration and argued that the dismissal was due to illness.
The Nuremberg Regional Labour Court did not follow this view.
Why there was no cancellation due to illness
The court clarified that a distinction must be made between the reason for termination and the cause for termination. Even if an illness coincides with the termination, this does not automatically constitute a termination for cause.
The decisive factor here was that the employee had breached her duty to report to work as stipulated in her employment contract. She had neither offered to work nor reported her continued inability to work. The employer was therefore entitled to assume that the absence was unexcused.
In the opinion of the court, the dismissal was not due to the illness, but due to the breach of duty and the resulting deregistration by the hirer company. The illness was therefore not the decisive reason for the dismissal.
Cancellation despite ongoing deadline for proof
The decision also has particular significance for the question of whether an employer must wait for the notification and proof deadlines. In principle, an employer who terminates before the expiry of these deadlines cannot object that it had no knowledge of the illness.
However, the Nuremberg Regional Labour Court makes it clear that this alone is not sufficient to assume a termination for cause. Even if the employer is treated as if it had knowledge of the illness, the decisive factor remains whether the illness actually contributed to the decision to dismiss.
If there is an independent reason for termination, such as an unexcused absence or a breach of contractual obligations, the circumstantial conclusion can be invalidated.
Significance for practice
For employees, the judgement shows that not every dismissal during an illness is automatically a dismissal due to illness. Anyone wishing to claim continued payment of remuneration beyond the end of the employment relationship must be able to demonstrate that the illness had a significant influence on the decision to terminate the contract.
For employers, the decision emphasises the importance of clear contractual provisions on notification and reporting obligations. If these are violated, a dismissal may also be permissible in connection with an illness without triggering claims for continued remuneration.
Conclusion on cancellation due to illness
The judgement of the Nuremberg Regional Labour Court shows that the question of termination for cause must be viewed in a differentiated manner. It is not the temporal context alone that is decisive, but the actual reason for the decision to terminate.
Anyone dealing with dismissals due to illness, continued payment of remuneration or termination for cause should carefully examine the specific facts of the case. Particularly during the probationary period and in special constellations such as temporary employment, the legal assessment can differ significantly from the initial assessment.
Source: Regional Labour Court Cologne
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.
