Dismissal on grounds of sickness in Germany is a subpart of the dismissal on grounds of personal capability.
Generally any illness is not a reasonable condition to dismiss an employee.
However continuous sickleaves or a long lasting illness causes high costs for a company. A specific juridical definition of such a dismissal is not stated in the German law. To address this issue, the law in Germany sets certain frame conditions with a specific testing scheme in three stages for it. During this process, certain circumstances have to be proven in order to legally dismiss an employee.
Four different typical types of dismissal on grounds of sickness exist in the German law, which are divided in long-lasting sickness, permanent incapacity for work, reduced performance and frequent short-term sickleaves of the employee. All of those can lead to a dismissal. The obligatory three-stage testing scheme needs to prove a negative forecast of the health of the employee, a severe harm to the company through the sickness and the company has to balance the interests of the company and the employee.
Along with that, the application of a reintegration management after sickness has to be applied.
Within this process the appropriate participation of the works council according to law and the law of equality has to be respected.
The major burden of proof remains in the whole process on the employer, however the highest risk stays with the employee. As there is no prescribed timeline, a long-lasting law process can harm an employee even more as he has to suffer not only from his illness but also from the financial pressure.
Table of Contents
1. IMPORTANT LEGAL DEFINITIONS
1.1. SICKNESS
1.2. UNABLE TO WORK
1.3. HANDICAPPED
2. TYPES OF DISMISSAL ON GROUNDS OF SICKNESS
2.1. DISMISSAL ON GROUNDS OF LONG-LASTING ILLNESS
2.2. DISMISSAL ON GROUNDS OF PERMANENT INCAPACITY FOR WORK
2.3. DISMISSAL ON GROUNDS OF SICKNESS INDUCED REDUCED PERFORMANCE
2.4. DISMISSAL ON GROUNDS OF FREQUENT SHORT-TERM SICK LEAVES
3. THREE STAGE TESTING SCHEME
3.1. NEGATIVE FORECAST
3.2. SIGNIFICANT IMPEDIMENTS OF CORPORATE INTERESTS
3.3. BALANCING OF INTERESTS
4. REINTEGRATION MANAGEMENT AFTER SICKNESS
5. JURIDICAL POLICY GUIDELINES FOR THE DISMISSAL ON GROUNDS OF SICKNESS
5.1. ALCOHOLISM
5.2. OPERATIONS RELATED SICKNESS
5.3. FREQUENT SHORT-TERM SICK-LEAVES
5.4. SICKNESS INDUCED REDUCED PERFORMANCE
5.5. LONG-TERM SICKNESS
6. THE BURDEN OF PROOF
7. PARTICIPATION OF THE WORKS COUNCIL
8. LIMITATIONS OF THE LEGISLATION
9. THE GENERAL EQUAL TREATMENT ACT (AGG)
10. CONCLUSION
Objectives and Topics
This paper examines the legal framework and requirements for the dismissal of employees in Germany on the grounds of sickness. It analyzes the specific conditions under which such terminations are legally permissible, the procedural safeguards for employees, and the challenges faced by employers within the German labor court system.
- The four typical legal categories of sickness-related dismissals.
- The application of the mandatory three-stage testing scheme.
- The legal obligation of reintegration management.
- The distribution of the burden of proof between employer and employee.
- The impact of the General Equal Treatment Act (AGG) on dismissal processes.
Excerpt from the book
3.1. Negative forecast
The first step is to check the potential future health development of the employee. According to the BAG the negative forecast is already indicated in frequent short-term sick leaves based on the rule of thumb stated in chapter 2.4. (BAG, 1999)
The prediction has to be done solely future looking. A dismissal based on diseases in the past is not allowed. The dismissal on grounds of sickness is the last resort for a company to prevent severe future harm. (ELSNER, Susanne, 2000)
The burden of proof has initially the employer, who has to reason the negative forecast. In terms of frequent sick-leaves for example it is enough to show the past sick-leaves according to the BAG rule of thumb and the burden of disproval changes to the employee.
The employee is able to invalidate the negative forecast in reasoning, how his health will stabilize and improve in the future. (BERKOWSKY, Wilfried, 1997)
Summary of Chapters
1. IMPORTANT LEGAL DEFINITIONS: Clarifies fundamental legal terms such as sickness, inability to work, and handicap within the context of German labor law.
2. TYPES OF DISMISSAL ON GROUNDS OF SICKNESS: Categorizes the four main legal forms of sickness-related dismissal, including long-lasting illness and frequent short-term absences.
3. THREE STAGE TESTING SCHEME: Details the compulsory three-step process—negative prognosis, significant corporate impact, and balancing of interests—required for a valid dismissal.
4. REINTEGRATION MANAGEMENT AFTER SICKNESS: Explains the statutory obligation for companies to implement reintegration measures to avoid unnecessary terminations.
5. JURIDICAL POLICY GUIDELINES FOR THE DISMISSAL ON GROUNDS OF SICKNESS: Analyzes specific court-derived guidelines for challenging cases like alcoholism and work-related illnesses.
6. THE BURDEN OF PROOF: Discusses the allocation of evidentiary requirements between the employer and the employee during the dismissal process.
7. PARTICIPATION OF THE WORKS COUNCIL: Outlines the mandatory role of the works council and the consequences of failing to involve them in the dismissal process.
8. LIMITATIONS OF THE LEGISLATION: Critically evaluates the problematic nature of using past health data to forecast future outcomes and the challenges of evaluating bridging measures.
9. THE GENERAL EQUAL TREATMENT ACT (AGG): Examines the interaction between sickness-related dismissal law and non-discrimination regulations, particularly concerning handicapped individuals.
10. CONCLUSION: Synthesizes the findings, highlighting the individual nature of each case and the complex balance of pressure on both employers and employees.
Keywords
Dismissal on grounds of sickness, German Labor Law, Three-stage testing scheme, Negative forecast, Reintegration management, Works Council, Burden of proof, Sickness-related absenteeism, Long-lasting illness, Permanent incapacity, General Equal Treatment Act (AGG), Labor courts, Employment termination, Occupational health, Employee rights
Frequently Asked Questions
What is the core subject of this research paper?
The paper explores the legal conditions, procedural requirements, and court guidelines governing the dismissal of employees due to sickness in Germany.
What are the central themes discussed in the work?
The work focuses on the legal definition of sickness, the obligatory three-stage testing scheme, employer-employee rights, and the influence of anti-discrimination laws.
What is the primary objective of this study?
The primary goal is to provide a clear overview of the juridical framework that allows companies to legally dismiss employees on the grounds of sickness while respecting strict labor protection laws.
Which scientific method does the author employ?
The author conducts a legal-doctrinal analysis, synthesizing existing labor laws, legislative acts, and jurisprudence from German labor courts (BAG, LAG).
What does the main body of the paper cover?
The main body covers the categorization of dismissals, the three-stage testing process, reintegration management, the burden of proof, and the role of the works council.
Which keywords characterize this paper?
Key terms include Dismissal on grounds of sickness, Three-stage testing scheme, Negative forecast, Labor Law, Reintegration management, and General Equal Treatment Act (AGG).
How is alcoholism treated under the dismissal guidelines?
Alcoholism is treated similarly to other sicknesses, but the unwillingness of an employee to undergo therapy can strengthen the employer’s argument for a negative forecast.
Why is the "three-stage testing scheme" mandatory?
It is mandatory because it provides a transparent and legally binding framework for employers to prove that a dismissal is a last resort to prevent severe harm to the company.
What financial risks does the employee face during this process?
The employee faces significant financial pressure, as the dismissal process often results in the cessation of salary payments, potentially compounded by the costs of long-term illness.
How does the General Equal Treatment Act (AGG) affect dismissals?
The AGG prohibits discrimination based on factors like handicap or age, ensuring that dismissals on grounds of sickness cannot be used to indirectly target protected groups.
- Arbeit zitieren
- Markus Biedermann (Autor:in), 2015, Dismissal on Grounds of Sickness in Germany, München, GRIN Verlag, https://www.grin.com/document/294670
