Termination during sick leave over two glasses of wine at a company party resulted in a €24,000 severance after the labor court ruled the summary dismissal unlawful.
The claimant had been employed for several years at a medium-sized company. Due to a medically certified illness, he was on sick leave. Nevertheless, the employer invited him to the company Christmas party. He attended and drank two glasses of wine over the evening. A supervisor observed this and reported it to HR. A few days later, the employee received a summary dismissal, with the justification that alcohol consumption contradicted the certified incapacity and proved he was not actually ill. The employee filed an unfair dismissal claim.
Termination during sick leave and alcohol consumption
The court found that mere attendance at a company event and moderate alcohol consumption during sick leave do not automatically disprove incapacity. The decisive factor is whether the specific illness medically prohibits attending the party and consuming two glasses of wine. The medical certificate attested to an illness that required neither bed rest nor a strict alcohol ban. The employer could not show that the wine consumption worsened his health or jeopardized recovery. Consequently, an important reason for summary dismissal under § 626 BGB was missing.
Legal Framework: Dismissal While on Sick Leave and Alcohol Consumption
Generally, an employee on sick leave may do anything that does not endanger or delay recovery. The Federal Labor Court has repeatedly clarified that a sick-leave certificate does not contain a blanket ban on leisure activities or social participation. A violation of the so-called ‘recovery obligation’ occurs only when the behavior objectively hinders the healing process. Moderate alcohol consumption at a party organized by the employer itself is, in case law, usually not deemed detrimental to recovery, provided no medical order opposes it.
For a conduct-based dismissal – and even more so for a summary dismissal – the employer must prove a serious breach of duty that permanently destroys the trust relationship. Mere suspicions or blanket assumptions are insufficient. The employer bears the burden of proof and production for the grounds of dismissal. If he fails, the dismissal is ineffective. In this context, § 626 BGB is decisive, regulating extraordinary dismissal for important cause.
Why the Court Found the Dismissal Unlawful
The court followed the employee’s argument that the dismissal already failed on formal and substantive grounds. Firstly, there was no prior warning. In conduct-based dismissals, a warning is generally required unless the misconduct is so serious that a warning is unnecessary. Two glasses of wine at an official company event did not reach that threshold in the court’s view. Secondly, the balancing of interests favored the employee: long tenure, previously impeccable conduct, no impairment of recovery. Moreover, the employer had himself issued the invitation to the party, sending a contradictory signal.
Another point was the lack of hearing the works council. Although the claimant was not a works council member, the omitted hearing under § 102 BetrVG rendered the dismissal ineffective because the works council was not informed of the intended measure. This formal error also factored into the overall assessment.
Termination during sick leave cases like this highlight the importance of proper assessment.
Such a case shows how quickly employers can misjudge behavior during incapacity for work and overreach, exposing themselves to significant litigation risk.
The Severance: How the €24,000 Was Determined
After establishing the dismissal’s ineffectiveness, the parties settled in a court-mediated agreement on a €24,000 severance. This amount did not stem from a statutory entitlement – such an automatic claim does not exist for conduct-based dismissals – but arose from the employer’s bargaining position shaped by litigation risk. Had the employer pursued an appeal, he would likely have lost and additionally borne the attorneys’ fees of both sides as well as lost wages for the duration of the proceedings.
The severance size oriented on the so‑called ‘rule of thumb’ (0.5 to 1.0 gross monthly salaries per year of service), which in practice serves only as a guideline and creates no legal obligation. In this case, the sum corresponded to roughly 0.75 gross monthly salaries per year of tenure. Important: A severance is always a matter of negotiation. There is no statutory automatism guaranteeing a specific amount. § 1a KSchG provides a claim only for operational dismissals, and only if the employer explicitly offers it in the dismissal letter – which was not the case here.
Lessons for Employees: Conduct While on Sick Leave
Employees should know that a sick-leave note is not house arrest. Walks, shopping, attending cultural events, or even a company‑organized party are generally permissible as long as they do not hinder recovery. Nevertheless, caution is warranted. Anyone who engages in activities during sick leave that objectively do not match the illness (e.g., competitive sports with a herniated disc, excessive drinking with liver disease) risks losing the continued‑pay entitlement and gives the employer grounds for dismissal.
Understanding that Termination during sick leave requires careful medical justification can prevent unnecessary disputes.
It is advisable to consult a physician when in doubt and, if needed, obtain a written confirmation that the planned activity does not jeopardize recovery. Furthermore, employees should have any dismissal – especially a summary dismissal – reviewed promptly by an employment law specialist. The three‑week filing period under § 4 KSchG begins upon receipt of the dismissal and is a deadline; missing it makes the dismissal final, even if unlawful.
Risks for Employers: Hasty Dismissals Over Alleged Misconduct
The case illustrates the considerable risks employers take when they issue dismissals based on suspicion or moral reservations without verifying the legal prerequisites. An ineffective dismissal leads not only to severance payments but also to back‑pay for the proceedings period (default wages), attorney and court costs, and reputational damage. Employers should, before any conduct‑based dismissal, ask: Is there a provable, serious breach of duty? Was the employee previously warned (if required)? Was the works council properly heard? Is proportionality maintained?
An employer misconduct before or during the dismissal process can further strengthen the employee’s negotiating position and influence the severance amount. Particularly with long‑serving staff, a settlement agreement with appropriate severance often makes more sense than a risky dismissal procedure.
Conclusion: Using Litigation Risk as a Bargaining Lever
The judgment shows that a dismissal during sick leave for moderate alcohol consumption at a company party often does not survive court scrutiny. For affected employees, this means: Do not be intimidated, but have your legal position examined and, if necessary, file a claim. The employer’s litigation risk is frequently the strongest lever to obtain a fair severance. Those who promptly engage an employment law specialist and respect the filing deadline secure the best starting position. A professional preparing for severance negotiations can make the difference between a modest payout and an outcome like the €24,000 in this case. RechtStark, as a litigation funder, gladly assesses whether financing the proceedings is an option – with no cost risk to the claimant.
Note: This article is for general information purposes only and does not replace individual legal advice. For a free initial assessment of whether litigation funding may be an option for your case, you can contact RechtStark.