Dismissal due to a sick note as an inadmissible measure according to § 612a BGB

LAG Hessen Judgment of 28.03.2025 - 10 SLa 916/24

In a judgement dated March 28, 2025 (case no. 10 SLa 916/24), the Higher Labour Court of Hessen ruled that the probationary period termination issued by the employer to an employee who had submitted a certificate of incapacity for work shortly beforehand due to an accident at work was valid and did not violate the prohibition of reprimands under Section 612a BGB or the principle of good faith under Section 242 BGB. The dismissal was not primarily due to the sickness-related absence, but due to general dissatisfaction with the employee's work performance and language skills. The temporal proximity between the sick note and the dismissal was at best coincidental, as the employer had comprehensible reasons for the termination and there were no other indications of an arbitrary or disloyal act by the employer.

A. Facts of the case

The plaintiff, born in 1964, had been employed by the defendant as a driver since August 1, 2023 and received a monthly gross salary of EUR 2,956.80. The employment contract stipulated that the plaintiff's main additional task was to unload the materials at the specified unloading location. The employment contract provided for a notice period of two weeks during the probationary period. The plaintiff was hired by the defendant via a Spanish recruitment agency together with three other employees.

On January 16, 2024, the plaintiff suffered an accident at work while working as a loader collecting bulky waste. He slipped on the sidewalk in icy conditions and, according to the court's findings, suffered at least one contusion to his lumbar spine. According to the plaintiff, there was also a rupture of the rotator cuff.

On January 24, 2024, the plaintiff submitted a certificate of incapacity for work certifying that he was expected to be unable to work until January 31, 2024. On January 26, 2024, the defendant terminated the employment relationship with the plaintiff; he received the notice of termination on January 28, 2024. At the same time, the employment contracts of two other employees who had also been hired through the Spanish recruitment agency were also terminated.

The plaintiff filed an action for unfair dismissal against the termination with the Frankfurt am Main Labour Court (judgment of 25 June 2024 - 18 Ca 908/24) and argued that the termination was due to his accident at work and the subsequent sick note. He also accused the defendant of not deploying him in accordance with the contract and violating health and safety regulations. The defendant justified the dismissal with its dissatisfaction with the plaintiff's work performance, who - like two other employees who were hired by the defendant via the Spanish recruitment agency - had no experience as a driver and had therefore caused an increasing number of traffic accidents, and with the plaintiff's lack of knowledge of the German language. These were also the reasons for the dismissals of two other employees placed with the defendant via the Spanish recruitment agency. In total, the defendant had only retained one of the four employees who had been hired through the Spanish recruitment agency. The defendant denied that the accident at work or the sick note were decisive for the termination or had any significance in this context.

The Frankfurt am Main Labour Court only partially upheld the claim. It found that the employment relationship was terminated at the end of February 11, 2024 (but not at an earlier date) and ordered the defendant to issue the plaintiff with a benevolent, qualified reference. The remainder of the claim was dismissed.

The plaintiff appealed against this judgment to the Higher Labour Court of Hessen.

B. Reasons for the decision of the Higher Labour Court of Hessen

The Higher Labour Court of Hessen dismissed the plaintiff's appeal and confirmed the decision of the lower court.

I. No violation of the prohibition of measures (Section 612a BGB):

The notice of termination issued to the plaintiff did not initially violate the prohibition of reprimands under Section 612a BGB and was therefore not invalid for this reason pursuant to Section 134 BGB.

According to Section 612a BGB, the employer may not discriminate against an employee because the employee is exercising his rights in a permissible manner. The prohibition of discrimination is intended to protect the employee's freedom of will when deciding whether or not to exercise a right. The prohibition of discrimination therefore covers a special case of immorality. According to established case law, a violation of the prohibition of reprimands exists if the employee's permissible exercise of rights is the main motive, i.e. the essential motive for the employer's disadvantageous measure (see BAG judgment of 30.03.2023 - 2 AZR 309/22, NJW 2023, 2139). Accordingly, it is not sufficient that the exercise of rights only provides the external reason for the measure. If the employer acts on the basis of a bundle of motives, the essential motive must be considered. In particular, the termination of an employment relationship is recognized as a measure within the meaning of Section 612a BGB (see BAG judgment of 30.03.2023 - 2 AZR 309/22, NJW 2023, 2139). The employee bears the burden of presentation and proof for a breach of the prohibition of reprimands. In particular, the employee must substantiate and prove the causal link between the disadvantageous measure and the permissible exercise of rights.

The Regional Labour Court of Hessen clarified that a dismissal in connection with a sick note only constitutes an impermissible disciplinary measure if it is intended to sanction a permissible absence from work. In this case, however, the plaintiff was unable to prove that the dismissal was due to the sick note or the accident at work. The defendant was able to cite credible and comprehensible reasons for the probationary period termination given to the plaintiff, namely its dissatisfaction with the plaintiff's work performance and language skills. In addition to the plaintiff, the defendant also dismissed two other employees who had also been hired by the defendant via the Spanish recruitment agency on the same grounds. Ultimately, the defendant retained only one of four employees hired through the Spanish recruitment agency. In the opinion of the Higher Labour Court of Hessen, this circumstance also spoke against an impermissible reprimand of the plaintiff and thus against a violation of the termination against § 612a BGB.

II. No breach of good faith (§ 242 BGB):

Furthermore, the termination also did not violate the principle of good faith under Section 242 BGB and was therefore not invalid for this reason. A dismissal could only be considered contrary to good faith outside of the Dismissal Protection Act (KSchG) if it was made arbitrarily or for irrelevant reasons. In the present case, the Hessen Regional Labour Court saw no evidence of any breach of trust on the part of the defendant.

Any contributory negligence on the part of the defendant in the accident at work would at most be relevant for claims for damages, but not for the validity of the notice of termination issued to the plaintiff. In the present case, the general risk of life in particular had materialized, as the plaintiff slipped on an icy sidewalk. For this reason, the plaintiff's alleged violations of occupational health and safety regulations (e.g. due to the lack of gloves and safety shoes) were also not relevant to the decision.

According to the defendant's credible justification, the dismissal was not due to the accident or the plaintiff's illness, but due to general dissatisfaction with the work performance and language skills. Therefore, extraneous motives or arbitrariness could not be assumed in the present case. According to established case law, arbitrary dismissal cannot be assumed if there is any plausible reason for the dismissal (see BAG judgment of 24.01.2008 - 6 AZR 96/07, NZA-RR 2008, 404). The existence of such a reason is again supported by the fact that the employment contracts of two other employees, who had also been hired by the defendant via the Spanish recruitment agency, were terminated by the defendant within the probationary period for the same reasons and the defendant only retained one of a total of four of these employees.

III. Termination during the probationary period:

Since the employment relationship had not yet existed for six months, the Dismissal Protection Act did not apply. During this so-called waiting period, the employer can terminate the employment relationship without giving reasons as long as there are no immoral or unfaithful motives. A reason for termination was therefore not required and was therefore not subject to judicial review. Rather, the defendant's subjective assessment of the plaintiff's suitability for the job and his language skills were sufficient reasons for termination. The notice period in this case was two weeks. The letter of termination was received by the plaintiff on January 28, 2024. The employment relationship therefore ended at the end of February 11, 2024, as the Frankfurt am Main Labour Court had already correctly determined in its first instance ruling.

C. Summary and practical advice

The Hessen Regional Labour Court correctly confirmed the validity of the probationary period termination. It correctly held that there was neither a breach of the prohibition of reprimands under Section 612a BGB nor any indication of a breach of the principle of good faith under Section 242 BGB. In the present case, the plaintiff was unable to prove that the termination was intended to sanction precisely the permissible absence from work due to illness. Rather, the defendant employer was able to present other, credible reasons for termination. The court was therefore convinced that the dismissal of the plaintiff in the present case was not due to the accident at work or the sick note, but for understandable, non-arbitrary reasons, namely due to dissatisfaction with his work performance and his language skills. Decisive for the court's assessment was the fact that the plaintiff's dismissal was part of a uniform corporate personnel decision by the defendant, according to which a total of three of the four employees hired through the Spanish recruitment agency were to be dismissed and were ultimately dismissed.

The judgment of the Higher Labour Court of Hessen is convincing.

Based on a simple set of facts, it shows that, from the employer's point of view, particular caution is required when a termination is to be pronounced in a direct temporal connection with an incapacity to work. The temporal connection between incapacity for work and termination can cast doubt on the validity of the termination if the employer cannot provide convincing reasons for the termination. This also applies in the case of probationary period terminations, where a reason for termination within the meaning of Section 1 (2) KSchG is not required per se. Of course, the requirements here are less stringent, as according to BAG case law, it is sufficient if there is "some kind of plausible reason for the dismissal". Even if the burden of presentation and proof regarding the existence of a breach of the prohibition of reprimands generally lies with the employee, employers should carefully document the reasons for termination - especially if there is a temporal connection between an incapacity to work and the notice of termination. This is the only way to effectively refute the accusation that the termination violates the prohibition of reprimands in any subsequent dismissal protection proceedings.