Judgement of the Federal Labor Court Regarding Dismissal due to Frequent Short Illnesses

With its judgment dated 25 April 2018, the Federal Labor Court (Bundesarbeitsgericht, BAG) has maintained its constant jurisdiction, deciding that a disruption relevant for dismissal exists if, according to the employee’s health prognosis, costs for continued remuneration exceeding six weeks within one year are expected in future (docket number: 2 AZR 6/18).


The court had to decide under which conditions the extraordinary dismissal of an employee, whose contract cannot be ordinarily terminated under a collective agreement, due to frequent short illnesses can be justified. The plaintiff, who was born in 1966, has been employed by the defendant as a nursing assistant since 1992. Since 2011, he has been repeatedly incapacitated for work – predominantly due to illnesses of the “psychiatric form circle” -, mostly for shorter periods of up to ten working days. He is recognised as a disabled person with a degree of disability of 40%, but is not equated with severely disabled persons.


On the basis of contractual reference, the Collective Agreement for Public Service of the States (Tarifvertrag für den öffentlichen Dienst der Länder, TV-L) is applicable to the employment relationship, whereby the plaintiff is not ordinarily terminable in accordance with sec. 34 para. 2. Consequently the defendant extraordinarily terminated the employment relationship on 22 August 2016 with a social expiry date of 31 March 2017 due to frequent short illnesses. However, in order to avoid an objection to the valuation it is urgent that the employee observe a phase-out period corresponding to the fictitious ordinary qualifying period. Additionally, the standard of review must take into account the high requirements to be met for extraordinary dismissal pursuant to sec. 626 para. 1 German Civil Code (BGB).


The Federal Labour Court and the State Labour Court in Cologne have upheld the dismissal protection suit. The claim will now be referred back to court for a new hearing and decision.


In the judgment’s official directive it is said that, according to sec. 34 para. 2 of the Collective Agreement for Public Service of the States (Tarifvertrag für den öffentlichen Dienst der Länder, TV-L), an important reason for extraordinary dismissal with a necessary expiration period of an employment relationship that cannot be terminated in accordance with sec. 34 para. 2 sentence 1 of the relevant Collective Agreement may exist, if it is to be expected that the employer will have to continue paying remuneration in the event of illness for more than one third of the annual working days, whereby a comprehensive weighing of interests in individual cases is required.