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Ineffective termination in spite of frequent short term absences due to illness

On 7 March 2017, the Higher Labour Court (LAG Mecklenburg-Western Pomerania, docket number 2 Sa 158/16) decided that a termination can be ineffective even though the employee’s absences due to illnesses are frequent and significant. The illness must fulfill the requirements of the negative prognosis that the employee will not come back to work for the foreseeable future.

The parties were in dispute about the social justification of a termination due to illness. The plaintiff worked for the defendant, who runs a production operation, since 2003 as a machine operator. From August 2011 until the end of September 2014  the plaintiff was frequently and significantly absent from work. She suffered from several diseases such as a pinched nerve in her elbow, bronchitis and an urinary tract infection. In addition to that, she went through a divorce from her husband and suffered an accompanying life crisis. From 2011 until 2014 she was absent on 301 working days. In October 2015, after the plaintiff was absent six times (for 37 working days), the defendant decided to give her a notice. In the first instance court the plaintiff’s claim was successful.

The Higher Labour Court decided as second instance that the termination was not effective as per sec. 1 of the Dismissal Protection Act (KSchG) because it could not be justified under social aspects. There could be no negative forecast regarding the plaintiff’s absence from work in the future.

The specific illness has to be included in the negative prognosis: A pinched nerve does not fulfill these requirements because injuries of the skeleton or tissue heal in normal cases. There was no evidence for the assumption that the other diseases are chronic. Furthermore, the plaintiff’s physical reaction and life crisis as a result of her divorce are insufficient for a negative prognosis. Based on general experience it can be assumed that a life crisis can be overcome.

A negative prognosis could only be based on the plaintiff’s morbidity if a judicial assessment would conclude that the number and length of the plaintiff’s diseases are above the average of other employees’ comparable diseases.