Dismissal due to frequent short-term sick leave

In its judgment of December 9, 2025 (Case No. 7 SLa 384/25), the Higher Labour Court (LAG) of Cologne upheld the validity of a dismissal based on frequent short-term absences due to illness. The court confirmed that different causes of illness do not necessarily preclude a dismissal if an employee accumulates a very high number of sick days over several years.

Background of the Case

The employee had been working for an employer in Cologne since March 2017. Due to illness, he was absent from work for 60 days in 2022, 69 days in 2023, and 53 days in 2024, amounting to a total of 182 working days over three consecutive years. The absences continued into 2025 up until the dismissal.

The employer incurred continued remuneration costs of approximately EUR 30,000 gross.

The employer repeatedly offered the employee participation in a Company Integration Management process (Betriebliches Eingliederungsmanagement – BEM). However, the invitations did not fully comply with the formal requirements established by case law. The employee did not respond to any of the invitations.

The employer subsequently terminated the employment relationship with notice.

During the proceedings, the employee argued that his illnesses consisted of unrelated acute conditions, including respiratory infections, gastroenteritis, and common cold symptoms.

The Court’s Decision

The Higher Labour Court confirmed the validity of the dismissal. In doing so, it applied the established three-stage test for dismissals based on frequent short-term illnesses.

First Stage – Negative Health Prognosis

The substantial number of absences over three consecutive calendar years constituted a strong indication that comparable absences were likely to continue in the future.

The employee was unable to rebut this negative prognosis through medical evidence or by demonstrating concrete measures aimed at improving his health. Merely identifying different and allegedly unrelated medical conditions was not sufficient.

Second Stage – Significant Impact on the Employer’s Interests

The court found that the employer’s interests had been significantly affected.

The employer was required to continue paying remuneration for more than six weeks per year. In addition, the absences resulted in short-term rescheduling, staff shortages, cancelled appointments, and customer dissatisfaction.

These specific consequences demonstrated that the employee’s absences had caused a lasting disruption to business operations.

Third Stage – Balancing of Interests

Despite the employee’s social circumstances, including his obligation to support his spouse and two children and his length of service since 2017, the balancing of interests ultimately favored the employer.

The extent and duration of the absences, combined with the employee’s lack of participation in the BEM process, outweighed the social considerations.

The fact that the BEM procedure had not been conducted in full compliance with the formal requirements did not work against the employer. Since the employee had simply ignored all invitations, any procedural deficiencies were not considered decisive.

Implications for Employers

The judgment of the Higher Labour Court of Cologne confirms the established case law of the German Federal Labour Court and demonstrates how employers can prepare dismissals due to illness carefully and in a legally compliant manner.

Employers should maintain comprehensive records of illness-related absences and quantify the resulting continued remuneration costs. Several years of above-average absenteeism strengthen the presumption of a negative future health prognosis.

Equally important is the proper implementation of a BEM process. If an employee is unable to work for more than six weeks within a twelve-month period, the employer should promptly invite the employee in writing to participate in a BEM procedure. Any refusal or failure to respond should be carefully documented. If absences continue, a renewed invitation should be considered.

In addition to documenting continued remuneration costs, employers should also record other operational impacts associated with the absences. Evidence such as records of rescheduling measures, overtime worked by colleagues, customer complaints, and cancelled appointments can significantly strengthen the justification for a dismissal.