Dismissal While on Sick Leave: Is That Allowed?

Can I really be dismissed while on sick leave?

The honest, and for many surprising, answer is: yes. Germany has no statutory ban on dismissal simply because an employee is on sick leave. The widespread belief that a sick note is a shield against dismissal is a mistake, and unfortunately a costly one if it leads you to let the claim deadline slip by.

The employer is generally allowed to dismiss you even while you’re unfit for work at home. Your sick note doesn’t change that: it’s neither an obstacle nor a requirement for the dismissal to be valid. Whether the dismissal ultimately holds up is decided by the normal rules of dismissal law, not by your state of health on the day it reaches you.

That’s uncomfortable news at first. The good news follows right after: precisely because the illness itself plays no role, a dismissal during sick leave is often challengeable for entirely different reasons, and the usual protection against dismissal still applies in full.

The big misunderstanding

The mistake at the heart of this stems from a mix-up. Many people think: I’m on sick leave, so any dismissal must be a dismissal for health reasons, and that’s almost impossible. Neither part of this thought is correct.

A dismissal issued while you’re on sick leave often has nothing to do with the illness as a reason. The employer can base it on entirely different grounds:

• Operational reasons: your position is eliminated, for example through restructuring or job cuts. More on this under dismissal for operational reasons.
• Conduct-related reasons: misconduct that happened before the sick leave or is unrelated to it, often after a prior warning notice (Abmahnung).
• During probation or in a small business: if the Protection Against Dismissal Act doesn’t yet apply, or doesn’t apply at all, the dismissal doesn’t need a stated reason anyway. See dismissal during probation.

In all these cases, the sick leave is purely a coincidence of timing. It makes the dismissal neither better nor worse. What matters is whether the actual ground for dismissal holds up, and that’s exactly the starting point for an unfair dismissal claim.

Sick leave is not the same as a dismissal for health reasons

A genuine dismissal for health reasons is something different. Here the employer relies specifically on the illness as the ground, usually for long or frequently recurring illness. The hurdle here is genuinely high. If your employment falls under the Protection Against Dismissal Act, the employer generally has to clear three stages:

1. Negative health prognosis: at the time of dismissal, it must be objectively expected that you’ll continue to be significantly absent due to illness in future. A single, fully recovered illness isn’t enough for this.
2. Significant impact on the business: the expected absences must significantly disrupt business operations or the employer’s economic interests, for example through high continued-pay costs or operational disruption.
3. Balancing of interests: even then, weighing everything up must show that continuing the employment is no longer reasonable for the employer. This takes into account length of service, age, maintenance obligations, and the cause of the illness.

On top of that, before a dismissal for health reasons due to a longer illness, a company reintegration process (BEM) under § 167 (2) SGB IX must usually take place. If it’s missing, this doesn’t automatically make the dismissal invalid, but it makes it harder for the employer to prove there was no milder option than dismissal. In short, a dismissal for health reasons is far from a sure thing.

Your pay is protected: continued pay under § 8 EFZG

One of the most important, and least known, protective rules concerns money. As a rule, you’re entitled to continued pay for up to six weeks when you’re ill. An employer might be tempted to escape this payment through a quick dismissal. The law specifically prevents exactly that.

Under § 8 EFZG, your entitlement to continued pay remains in place if the employer terminates your employment because of your incapacity to work, even beyond the end of the employment relationship, until the six weeks are used up. So if the employer dismisses you during your illness precisely because of that illness, your continued pay keeps running, even if the notice period ends sooner.

In practice, this means: keep submitting your sick notes without gaps, even after receiving the dismissal. That’s the only way to secure this entitlement. And don’t declare yourself fit too soon just because the dismissal arrived in your letterbox.

Which protection really applies

Even though the sick note itself doesn’t protect you, all the other protection against dismissal still applies unchanged. Here’s what matters:

General protection under the KSchG

If the Protection Against Dismissal Act applies, generally for more than six months of service and more than ten employees at the business, the dismissal must be socially justified. It then needs an operational, conduct-related, or personal reason that holds up to judicial review. This is where the real leverage lies in practice, not in the illness.

Special protection against dismissal

Regardless of sick leave, special protection for certain groups continues to apply without interruption:

• pregnant employees and mothers after birth (maternity protection),
• employees on parental leave,
• severely disabled employees (requires approval from the integration office), see dismissal of severely disabled employees,
• works council members.

If you fall into one of these groups, a dismissal without the required approval, or in breach of the relevant ban, is generally invalid. Our page on special protection against dismissal gives an overview.

Formal requirements

Like any dismissal, one issued during illness must be in writing and personally signed. A dismissal by email, text, or WhatsApp is invalid. If a larger business fails to properly consult the works council first, the dismissal is likewise invalid.

Receipt and the deadline apply even if you’re ill

One dangerous mistake concerns when the deadline starts. The dismissal takes effect as soon as it reaches your sphere of control, typically once it’s put in your letterbox. Lying ill in bed and only opening the letter days later generally doesn’t shift this. The crucial clock starts running from the day of receipt.

And that clock is the 3-week deadline for an unfair dismissal claim (§ 4 KSchG). It applies to sick employees just as it does to healthy ones. Illness does not extend the deadline. Only in rare exceptional cases, where you were prevented from filing on time despite exercising all reasonable care, for example due to a severe illness leaving you incapacitated, can a late claim be admitted. Never count on this. Our deadline calculator shows exactly how many days you have left.

What you should do now

1. Note the date of receipt. Write down when the dismissal arrived in your letterbox. The 3-week deadline runs from that day, regardless of your illness.
2. Keep submitting your sick notes. Unbroken sick notes secure your continued pay under § 8 EFZG. Don’t declare yourself fit too soon.
3. Look for the real reason behind the dismissal. The illness is rarely the actual weak point. Check whether the stated or apparent reason actually holds up.
4. Check for special protection. Pregnancy, severe disability, parental leave, or a works council role can invalidate the dismissal from the outset.
5. Don’t sign anything. Neither a termination agreement (Aufhebungsvertrag) nor a settlement agreement, before the situation is clarified, see termination agreement.
6. Get an initial assessment. Our severance calculator shows you in 2 minutes whether it’s worth taking action and what severance pay is realistic.

How can we help you?

A dismissal landing on your doorstep while you’re ill hits at an already stressful time. That’s all the more reason to clear your head for the one question that matters: is this dismissal challengeable? Most of the time, it has nothing to do with the illness itself, but with the actual reason given, formal errors, or possible special protection against dismissal. We check this together with lawyers specialising in employment law and, where it makes sense, file a claim in time to meet the deadline.

We carry the risk: purely success-based, no upfront cost. We finance the proceedings, and only if you actually receive severance pay at the end do we keep an agreed share of it. So you can focus on getting better, not on costs. Start with an initial assessment through our severance calculator, it only takes 2 minutes. And keep the 3-week deadline in mind: it runs from the day the dismissal reaches you, even if you’re ill.