Frequent short illnesses as reason for termination without notice

BAG, judgment dated 23.1.2014 – 2 AZR 582/13

If an employee is repeatedly ill for short periods over a number of years and burdens the employer with corresponding costs for continued payment of remuneration, ordinary dismissal of the employee is fundamentally possible. If, however, an employee cannot be dismissed ordinarily as a result of a ruling in the contract of employment or collective wage agreement, the question arises of whether frequent short illnesses can also justify termination without notice. In this respect, the Federal Labour Court (BAG) has decided that frequent short illnesses can also be an important reason for termination without notice in exceptional cases. Nevertheless, this is only possible in absolutely exceptional circumstances.

Facts

The Claimant has been employed with the Defendant since 1981 and cannot be dismissed ordinarily due to rulings in the collective wage agreement. Between 2000 and 2011, the Claimant was unfit for work for an average of 18 weeks per year as a result of various illnesses. In the period between spring 2010 and spring 2012, the Claimant was ill for an average of “only” 11.75 weeks per year. On 28 March 2012, the Defendant dismissed the Claimant without notice with a social phase-out period up until 30 September 2012. The Claimant filed legal action for unfair dismissal. The Labour Court Hamburg and the State Labour Court Hamburg ruled in favour of the Claimant. The Federal Labour Court affirmed these decisions.

Legal assessment

The BAG stated in favour of the employer that frequent short illnesses, or the related negative prognosis of future illnesses, fundamentally constitute a reason for dismissal entitling the employer to terminate without the time pressure of the two-week period under Section 626 Subsection 2 BGB. As the frequent short illnesses are a so-called permanent situation, the twoweek period does not begin once only, but rather is continuously starting anew.

In the opinion of the BAG, however, there was no important reason for termination without notice in the case at hand.

The BAG explained its decision by stating that the course of the illness-related periods of absence of the Claimant did not justify the prognosis that the Claimant would in future be absent on the same scale as in the past ten years. In addition, the Claimant had not been ill again in the period from 19 December 2011 up until receipt of the notice of termination on 28 March 2012, a fact that also indicated a declining trend.

It was also necessary for the employment relationship between the employer and the employee to be genuinely “bereft of content”, i. e. in the event of continuation of the employment relationship the employer would be required to make significant remuneration payments without any noteworthy work performance in return.

In the opinion of the BAG, this does not apply even given annual absence of 18 weeks since, even in this case, the employee was still fit for work for almost two thirds of the annual working time and was therefore capable of being used meaningfully.

Summary

The decision by the BAG is relevant in particular in cases in which the possibility of ordinary termination is excluded by the contract of employment or the collective wage agreement. In these cases, the only remaining option left to the employer for unilateral ending of the employment relationship is that of termination without notice. The BAG places high demands on termination without notice based on frequent short illnesses, with the result that termination without notice can only be considered in extreme situations. The original employment relationship must be “bereft of content”. It can also be inferred from the decision that frequent short illnesses constitute a permanent situation, in which the two-week period for termination as per Section 626 Subsection 2 BGB continuously begins anew.