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Illness during the dismissal protection process

Labor law

Illness during the dismissal protection process

In Italy, the rumour persists that German law does not know the "tutela reale", i.e. the possibility for the employee to sue his way back to the job "in real terms" after a dismissal; the latest amendments to Italian law, which largely abolished the "tutela reale", were - allegedly - based on the German model.

The opposite is true, as many German employers have to experience in practice. If the employee does not want to give up his job under any circumstances, even severance payments of astronomical amounts cannot force him to do so.

In a German dismissal protection case, in addition to the risk of having to re-employ the employee in the end, there is also the risk of having to pay the entire compensation for the duration of the case. If the employee is healthy during the process, he or she is not even obliged to notify the employer of his or her ability to work.

The Federal Labour Court (21.07.2021, 5 AZR 543/20) has somewhat accommodated the employer here; if the employer presents circumstantial evidence (for example, a private expert opinion from a company doctor) that the employee was unfit for work during the process, this is sufficient; then it is up to the employee to demonstrate and prove that he was healthy and therefore entitled to back pay.