Dismissal While on Sick Leave: Is That Allowed?

Can you actually be dismissed while you are signed off sick?

The honest, and for many surprising, answer is: yes. In Germany there is no statutory ban on dismissal simply because an employee has been signed off sick. The widespread belief that a sick note is a shield against dismissal is a mistake, and unfortunately an expensive one if it leads you to let the deadline for filing a claim pass.

Your employer is generally allowed to dismiss you even while you are at home unable to work. The medical certificate does not change that: it is neither an obstacle to, nor a requirement for, the validity of the dismissal. Whether the dismissal ultimately holds up is decided by the ordinary rules of dismissal law, not by your state of health on the day it is received.

That is uncomfortable news at first. The good news follows right after: precisely because the illness itself plays no role, a dismissal issued while you are signed off sick is often open to challenge for entirely different reasons, and the usual protection against dismissal continues to apply in full.

The big misunderstanding

The mistake stems from a mix-up. Many people think: I am signed off sick, so any dismissal must be an illness-related dismissal, and that is almost impossible anyway. Neither part of that thought is correct.

A dismissal issued while you are signed off sick often has nothing to do with the illness as its reason. Your employer can rely on entirely different grounds:

• Operational reasons: the position is eliminated, for example through restructuring or job cuts. More on this under dismissal for operational reasons.
• Conduct-related reasons: misconduct that occurred before the sick leave or has nothing to do with it, often following a prior warning notice (Abmahnung).
• During the probationary period or in a small business: where the Protection Against Dismissal Act does not yet apply, or does not apply at all, the dismissal does not need to state a reason in the letter at all. See dismissal during the probationary period.

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 reason for the dismissal holds up, and that is exactly the starting point for an unfair dismissal claim.

Being signed off sick is not the same as an illness-related dismissal

Something quite different is a genuine illness-related dismissal. Here, the employer relies specifically on the illness itself as the reason, usually in cases of long-term or frequently recurring illness. For this, the hurdle really is high. If your employment relationship falls under the Protection Against Dismissal Act, the employer generally has to clear three stages:

1. Negative health prognosis: at the time of dismissal, there must objectively be reason to expect significant illness-related absences in the future too. A single illness that has since healed is not enough for this.
2. Significant operational impairment: the expected absences must significantly disrupt business operations or the employer's economic interests, for example through high continued-wage-payment costs or disruptions to workflow.
3. Balancing of interests: even then, a balancing exercise must show that continuing the employment is no longer reasonable for the employer. Length of service, age, maintenance obligations, and the cause of the illness all count here.

On top of that: before an illness-related dismissal in cases of longer illness, a workplace reintegration process (betriebliches Eingliederungsmanagement, BEM) under § 167 (2) SGB IX usually has to take place. If it is missing, this does not automatically make the dismissal invalid, but it makes it harder for the employer to prove that there was no milder option than dismissal. In short: an illness-related dismissal is anything but a foregone conclusion.

Your pay is protected: continued wage payment under § 8 EFZG

One of the most important, and least known, protective rules concerns money. As a rule, in case of illness you are entitled to continued payment of wages for up to six weeks. An employer might get the idea of avoiding this payment through a quick dismissal. The law prevents exactly that.

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

In practice this means: keep submitting your medical certificates without any gaps, even after receiving the dismissal. This is the only way to secure this entitlement. And do not declare yourself fit for work too soon just because the dismissal has landed in your letterbox.

Which protection really applies

Even though being signed off sick does not itself protect you, all the other protection against dismissal keeps applying unchanged. This is what matters:

General protection under the KSchG

If the Protection Against Dismissal Act applies, generally once you have more than six months of service and the business employs more than ten people, the dismissal must be socially justified. It then needs an operational, conduct-related, or personal reason that can withstand judicial review. This, not the illness, is where the real leverage lies in practice.

Special protection against dismissal

Regardless of being signed off sick, special protection for certain groups continues to apply without interruption:

• Pregnant employees and mothers after giving birth (maternity protection),
• employees on parental leave,
• people with a severe disability (consent of the integration office required), see dismissal in cases of severe disability,
• works council members.

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

Formal requirements

Like any dismissal, one issued during illness must also be in writing and personally signed. A dismissal by email, text message, or WhatsApp is invalid. In larger businesses, if the works council was not properly consulted beforehand, the dismissal is also invalid.

Receipt and the deadline apply even if you are ill

One dangerous misconception concerns when the deadline starts. The dismissal is legally received as soon as it enters your sphere of control, typically when it is put into your letterbox. The fact that you are lying ill in bed and only open the letter days later generally does not shift the point of receipt. From the day of receipt, the decisive clock starts running.

And that clock is the 3-week deadline for filing 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 in time despite exercising all reasonable care, for example due to a severe illness that left you unable to act, can a late admission be considered. You should never rely on this. To see exactly how many days you have left, use our deadline calculator.

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. Uninterrupted medical certificates secure continued wage payment under § 8 EFZG. Do not declare yourself fit too soon.
3. Look for the real reason behind the dismissal. The illness is rarely the actual point of attack. Check whether the stated or apparent reason actually holds up.
4. Check for special protection against dismissal. Pregnancy, severe disability, parental leave, or a works council role can invalidate the dismissal outright.
5. Do not sign anything. Neither a termination agreement (Aufhebungsvertrag) nor a settlement agreement, before the situation has been clarified, see termination agreement.
6. Get an initial assessment. Our severance calculator shows you within 2 minutes whether taking action is worthwhile and what severance pay is realistic.

How can we help you?

A dismissal landing on your doorstep while you are ill hits you at an already difficult time. All the more reason to clear your head for the one question that actually matters: is this dismissal open to challenge? Usually this has nothing to do with the illness at all, but with the actual reason given, formal errors, or possible special protection against dismissal. We review 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, with no upfront cost. We finance the proceedings, and only if you actually receive severance pay in 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 using our severance calculator, it only takes 2 minutes. And keep the 3-week deadline in mind: it runs from the day the dismissal is received, even if you are ill.