Yes. Being on sick leave does not generally protect an employee from termination. An employer may terminate an employee with or without cause even while the employee is on sick leave. However, the requirements for the respective type of termination must be met. Whether the termination is valid in a specific case must be assessed separately.
In the case of termination due to illness, strict requirements apply to the extent that the Unfair Dismissal Protection Act is applicable. In cases of frequent short-term illnesses, the key factors are a negative health prognosis, significant operational disruptions, and a comprehensive balancing of interests. Appropriate, less severe measures must also be considered ( Federal Labor Court [BAG], judgment of November 20, 2014 – 2 AZR 755/13). A current sick leave notice alone does not justify termination.
1. How can a notice of termination be served while an employee is on sick leave?
A notice of termination does not take effect merely by being sent. It must be received by the employee. This means that the letter must come into the employee’s possession, and under normal circumstances, the employee must have the opportunity to become aware of it ( Section 130(1) of the German Civil Code (BGB)).
Even during a period of incapacity for work, personal delivery is possible; it is therefore not generally ruled out. A notice of termination can also be delivered by a courier, for example, by placing it in the employee’s mailbox.
Placing the letter in the employee’s home mailbox can constitute receipt. The decisive factor is not solely the time of placement, nor is it a fixed “normal mail delivery time.” What matters is when, according to local customs and common understanding, the next emptying of the mailbox is to be expected. If the letter is placed in the mailbox only after that time, service generally occurs at the time when the next emptying is expected—often the following day. There is no fixed, universally applicable time. What matters are the local circumstances and the time at which the employee can reasonably be expected to become aware of the notice ( Federal Labor Court [BAG], judgment of August 22, 2019 – 2 AZR 111/19).
The fact that the employee was actually unable to check the mailbox personally due to illness does not, as a general rule, prevent service. Anyone who is temporarily unable to do so should therefore, as far as possible, take precautions to ensure that important mail can be received. Whether a serious illness justifies, as an exception, the retroactive admission of a missed claim must be examined separately and without delay ( Section 5 KSchG).
2. Observe the form and deadline
Termination of the employment relationship must be in writing; email, text message, instant message, or a scanned signature are not sufficient ( Section 623 of the German Civil Code (BGB)).
Anyone wishing to challenge a written notice of termination must generally file a claim for protection against wrongful termination with the labor court within three weeks of its receipt ( Section 4, Sentence 1, KSchG). Therefore, those affected should keep the envelope and the letter and note the exact time they found it as well as any known circumstances surrounding its receipt. The deadline should be checked immediately; the time of discovery and legal receipt do not have to coincide.
What matters is when the notice was received—Practical Tip: Note when you found the letter and any indications that it was delivered earlier. Keep the letter and envelope. If you need assistance emptying your mailbox while you are sick, arrange for this as far as possible. Do not wait until you have recovered to check the deadline.
3. Conclusion
A sick leave notice does not prevent an employer from issuing and effectively serving a termination notice. However, it can play a key role in determining whether a termination based on illness, in particular, is socially justified. Once you receive a termination notice, it’s important to act quickly—especially because of the three-week deadline for filing a lawsuit.
Note: This article provides a general overview and does not replace an assessment of the individual case.
4. Key Legal Provisions for Further Reading
5. Case Law for Further Reading
Footnote 1 – Federal Labor Court (BAG), Judgment of August 22, 2019 – 2 AZR 111/19 – For delivery to a mailbox, the time at which the recipient would normally be expected to become aware of the notice is decisive. Individual illness does not, in principle, prevent such delivery.
Footnote 2 – Federal Labor Court (BAG), Judgment of November 20, 2014 – 2 AZR 755/13 – In cases of frequent short-term illnesses, the prognosis, impact on work, and balancing of interests must be examined; appropriate, less severe measures may preclude termination.
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