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I’ll just be sick then …!

An announcement of a sickness-based absence may not always justify a dismissal according to a judgment by the Higher Labour Court Cologne (Landesarbeitsgericht, LAG).

Following judgments by the Federal Labour Court (Bundesarbeitsgericht, BAG), the announcement of absence from work due to sickness may justify a dismissal if the employee asks for leave and threatens the employer to call in sick if his request his not granted. This may also apply in cases where the employee does in fact fall sick later during the time of his requested leave.

In its judgment dated January 29, 2014 (docket number 5 Sa 631/13), the Cologne court deviates from this principle. In the case at hand, the plaintiff was out sick from work because of tendinitis (“Tennisarm”) in October 2012. Four weeks after she returned to work, she was asked to sub for a colleague in the Registrar’s Office. She argued that she was not able to work in that position because her arm hurt again. The employer claimed that the employee had refused work, saying that she would present a sick notice again. Two days later, the employee handed in a sick notice. The employer subsequently dismissed the employee for cause based on her announcement that she would be out sick again.

The Cologne court ruled that the dismissal was invalid. While generally employees are not allowed to use illness as a bargaining chip to force the employer to approve their leave request, the case is different if an already present condition will deteriorate if the employer fails to approve the request. Since the employer was unable to prove that the new assignment would not make the employee’s conditions worse, the dismissal was held to be without cause and thus invalid.