The story: 221 sick days in five years — and the employee won
The claimant had worked since May 2002 as a machine operator in production for a German automotive supplier, most recently earning 3,687.38 euros gross per month. From 2020 his sickness absences grew markedly:
| Year | Working days on sick leave |
|---|---|
| 2020 | 23 |
| 2021 | 47 |
| 2022 | 44 |
| 2023 | 35 |
| 2024 | 72 |
At the end of January 2025 the employer gave notice of ordinary dismissal effective at the end of August 2025, citing the recurring sickness absences. The works council (Betriebsrat) objected. Within two weeks of receiving the notice, the employee filed an unfair-dismissal claim (Kündigungsschutzklage) with the labour court — and won. The Koblenz labour court declared the dismissal invalid and ordered the employer to continue employing him on unchanged terms until the dispute is finally resolved.
How a German court reviews a dismissal due to illness
If the business regularly employs more than ten people and the employment has lasted longer than six months, the employee is protected by the Dismissal Protection Act (KSchG). A dismissal due to illness (krankheitsbedingte Kündigung) is then valid only if it passes a three-stage test established by the Federal Labour Court (among others, BAG judgment of 25 April 2018, 2 AZR 6/18):
Stage 1 — negative health prognosis. Facts existing at the moment the notice is received must justify the expectation that the employee will continue to be ill frequently. The starting point is the absence record of the last three years before the dismissal (the reference period).
Stage 2 — substantial impairment of business interests. The expected absences must cause concrete, serious disruption to operations or excessive financial burdens.
Stage 3 — balancing of interests. Even then the court weighs whether the burdens are truly unacceptable for the employer — taking into account length of service, age, the causes of the illnesses and whether milder means were available.
In the Koblenz case the dismissal already failed at stage one — and, independently of that, at stage three.
The crux of the judgment: one-off illnesses are deducted
The heart of the case lies in how you count. Only illnesses that may recur can support a negative prognosis. Absences caused by one-off events — an operation, an accident, a cured infection — are deducted from the record. In this case it looked like this:
- 2022: 17 of the 44 days dropped out — a reaction to a COVID vaccination (2 days), a COVID infection (8 days) and a middle-ear infection (7 days). 27 days remained.
- 2023: 10 of the 35 days dropped out — dental surgery (8 days), a head wound (1 day) and diarrhoea (1 day). 25 days remained.
- 2024: as many as 64 of the 72 days dropped out — shoulder pain, shoulder surgery and the recovery from it. 8 days remained.
„Denn der Kl. hatte jedenfalls im Referenzzeitraum der Jahre 2022–2024 hinreichende einmalige Krankheitsursachen benannt, die sich nach allgemeiner Lebenserfahrung im Normalfall nicht wiederholen dürften, insbesondere die Zahn- und Schulteroperationen.“
“The claimant had, in any event, named sufficient one-off causes of illness within the reference period 2022–2024 which, according to general life experience, would normally not recur — in particular the dental and shoulder operations.”
ArbG Koblenz, judgment of 24 September 2025, 4 Ca 473/25 — our translation
The court did not even commission a medical expert. It found it plausible that a tooth and a shoulder are — in the normal course of things — healed after surgery, and since the operations those conditions had caused no further absences.
The six-week line: roughly 30 working days per year
After deducting the one-off events, no year showed more than six weeks of absence. And that line is decisive. For the first six weeks of illness per year the employer is in any case legally obliged to continue paying full wages (§ 3 EFZG). From that rule the court drew a clear conclusion: absences of up to six weeks per year — in practice roughly 30 working days — are the employer’s normal risk and as a rule do not justify a dismissal.
„Es verblieben damit im Referenzzeitraum 2022–2024/25 nur Fehlzeiten von weniger als sechs Wochen jährlich. […] Die — bei Zugang der Kündigung am 4.2.2025 — künftig zu erwartenden Fehlzeiten von weniger als sechs Wochen jährlich sind deshalb nach der Wertung des § 3 EFZG vom Arbeitgeber grundsätzlich zu tragen.“
“That left, within the reference period 2022–2024/25, only absences of less than six weeks per year. […] The absences of less than six weeks per year to be expected in the future — as at receipt of the notice on 4 February 2025 — must therefore, according to the value judgment expressed in § 3 EFZG, in principle be borne by the employer.”
ArbG Koblenz, judgment of 24 September 2025, 4 Ca 473/25 — our translation
“High costs” is not enough — the employer must show specifics
The employer argued that the absences forced it to hire temporary workers, and that training them lowered output and burdened the rest of the team. The court found this far too general:
„Hier genügt es allerdings nicht, wenn der Arbeitgeber lediglich pauschal auf ‚hohe Kosten‘ oder ‚Mehrbelastungen‘ von Arbeitskollegen verweist. Ein solch schlagwortartiger Sachvortrag ist dem Beweis nicht zugänglich.“
“It is not sufficient here, however, for the employer merely to refer in blanket terms to ‘high costs’ or ‘additional burdens’ on colleagues. Such buzzword-style submissions are not amenable to proof.”
ArbG Koblenz, judgment of 24 September 2025, 4 Ca 473/25 — our translation
The employer must describe concrete past or present events: which orders suffered, what downtime occurred, which costs can be attributed precisely to this employee’s absences — and offer evidence. Without that, stage two of the test collapses.
The missing BEM decided the case
There was a second, independent reason the employer lost. If an employee is ill for more than six weeks in total within a year, the employer must offer a so-called occupational reintegration management process — betriebliches Eingliederungsmanagement (BEM, § 167(2) SGB IX). It is a confidential conversation, voluntary for the employee, about how to prevent further absences: adapting the workplace, changing the organisation of work or rehabilitation. The BEM must be offered within the year preceding the dismissal.
The employer claimed it had sent an invitation in April 2024 and a reminder in June 2024. The employee denied ever receiving them. And here is the next practical lesson — it is the employer who must prove that the BEM invitation reached the employee:
„Die insoweit darlegungs- und beweisbelastete Bekl. ist für den Zugang der bEM-Einladungen beweisfällig geblieben.“
“The defendant, which bears the burden of pleading and proof in this respect, failed to prove receipt of the BEM invitations.”
ArbG Koblenz, judgment of 24 September 2025, 4 Ca 473/25 — our translation
The consequence of a missing BEM is severe for the employer. It must then demonstrate in detail, of its own motion, that no milder solution — a different position, adapted working conditions, rehabilitation — was available. The courts set that bar very high, and in Koblenz the employer did not clear it. The dismissal was disproportionate, and the employee kept his job.
Dismissed because of illness — what to do
Write down the date you received the notice — from that day you have only three weeks to file a claim with the labour court (§ 4 KSchG). After that, even a defective dismissal becomes effective. Collect certificates and diagnoses: which absences were one-off events (operations, accidents, cured infections) — those drop out of the record. Check whether the employer effectively invited you to a BEM meeting within the last year. And do not sign any termination agreement without legal advice.
What this judgment means for you
- Frequent sick leave is not a verdict. The raw number of sick days — even 72 in a year — is not enough for a dismissal. What counts is the prognosis for the future.
- Operations and accidents do not count against you. One-off and cured illnesses are deducted. It pays to present diagnoses and release your doctors from confidentiality for the proceedings.
- Up to roughly six weeks per year you are essentially safe. Such absences are the employer’s normal risk and must as a rule be tolerated.
- A missing BEM works in your favour. If the employer cannot prove it effectively invited you to a BEM in the year before the dismissal, its position in court weakens dramatically.
- Watch the three-week deadline. A claim filed late loses almost automatically — regardless of how flawed the dismissal was.
Frequently asked questions
Can my employer dismiss me while I am on sick leave?
Yes — this is a common misconception. A notice of dismissal served during sick leave is permissible. The protection lies not in a ban on dismissals during illness, but in the strict requirements the employer must prove in court.
How many sick days per year justify a dismissal?
There is no fixed limit, but the guideline is six weeks per year within the three-year reference period. Below that line a dismissal due to illness is as a rule unjustified. Above it, the employer still has to prove a negative prognosis, concrete disruption and an offered BEM.
What is a BEM and do I have to take part?
It is an offer of a confidential conversation about preventing further absences, mandatory for the employer once you have been ill for more than six weeks in a year. For you, participation is voluntary, and declining cannot be held against you if the invitation did not meet the statutory requirements.
What can I realistically gain by filing a claim?
The court may declare that the employment relationship continues — with back pay for the litigation period and continued employment, as in the case discussed here. In practice many proceedings also end in a settlement with a severance payment, the amount of which depends on the strength of your position.
Analysis and quotations based on the reasons of the judgment of the Koblenz labour court (ArbG Koblenz) of 24 September 2025, case no. 4 Ca 473/25, our translation. Three-stage test: settled case law of the Federal Labour Court, among others judgment of 25 April 2018, 2 AZR 6/18.