The Hessian State Labor Court In its judgment of March 28.03.2025, 10 (case no. 916 SLa 24/612), the court issued a compelling decision. According to this ruling, the mere proximity in time between the submission of a certificate of incapacity for work and the notice of termination does not constitute a disciplinary measure under Section XNUMXa of the German Civil Code (BGB).
1. FACTS
In the present case, the parties disputed the validity of a dismissal during the probationary period. The employer had dismissed the plaintiff employee during the probationary period. The plaintiff had suffered several injuries during the probationary period due to an accident at work. The defendant company had terminated the employment two days after the employee had submitted the corresponding certificate of incapacity for work. The plaintiff is of the opinion that the dismissal violated the prohibition of disciplinary action against § 612a Civil Code violated.
The labor court essentially dismissed the unfair dismissal claim.
2. DECISION
The appeal before the Hessian Regional Labor Court was also unsuccessful and the appeal was not allowed.
The Court of Appeal essentially justified its decision as follows: § 612a German Civil Code The employer may not discriminate against an employee in a measure because the employee exercises his rights in a lawful manner. A violation of the prohibition of disciplinary action § 612a Civil Code may be present if the employee presents a certificate of incapacity for work because, by presenting a certificate of incapacity for work, the employee simultaneously asserts his right not to have to attend work (cf. BAG judgment of 20.5.2021 May 2, Ref. No. 160 AZR 20/XNUMX). A violation of § 612a Civil Code In the present case, this could therefore be seen in the fact that the employee had submitted a certificate of incapacity for work shortly before the termination was announced.
In the case at issue, however, the unfair dismissal claim was unsuccessful, among other reasons, because the plaintiff could not demonstrate that the dismissal was based solely on the employee's prior sick leave. Rather, the defendant company was able to demonstrate that the dismissal in the present case was issued for other reasons (for example, the plaintiff employee lacked sufficient German language skills; he had also been involved in several traffic accidents).
In the Court of Appeal's view, these overall circumstances indicated that the dismissal in question was not a reaction to the plaintiff's incapacity to work. Rather, the defendant was able to demonstrate conclusively that the dismissal was based on other reasons. During the first six months of an employment relationship, which is considered a probationary period pursuant to Section 1 Paragraph 2 KSchG are designed, this constitutes, in the opinion of the Court of Appeal, a sufficient plea. This plea is suitable to justify the termination of the employment relationship. Below the threshold of social justification for dismissal according to Section 1 Paragraph 2 KSchG employers’ evaluations are also sufficient.
The mere temporal coincidence between the plaintiff's incapacity to work and the notice of termination is therefore not sufficient to assume that a disciplinary measure has been taken.
3. CONCLUSION
The Regional Labor Court's decision demonstrates how quickly a company can be accused of unlawful disciplinary action. Employers are therefore always well advised to be able to demonstrate actual assessments or, better yet, objective circumstances that support the dismissal, even in the case of so-called probationary or waiting period dismissals.
