⚖️ Depression and employment law
In brief
Depression alone does not automatically protect against dismissal – conversely, however, dismissal must not be given simply because someone is ill. What matters is whether and how severely the illness affects cooperation in the workplace in the long term, not the diagnosis itself.
Step by step
- Check the dismissal carefully (or have it checked)Check receipt, form and deadline of the dismissal; if in doubt, get legal advice promptly (employment lawyer, trade union, advice centre).
- File the unfair dismissal claim in timeIf you want to challenge a dismissal, the claim must reach the labour court within three weeks of receipt.
- Do not disclose the diagnosis unaskedIn principle you do not have to tell your employer that the incapacity for work is due to depression.
- Check the BEM offer and proportionalityIn case of dismissal due to illness, labour courts regularly examine whether milder means (e.g. BEM, continued employment in another position) were possible.
- Assert protection against discriminationIf depression is treated as an (assumed) disability within the meaning of the General Equal Treatment Act (AGG) and you are disadvantaged as a result, claims under the AGG may come into consideration.
Deadlines
- If the 3-week deadline for the unfair dismissal claim is missed, the dismissal is as a rule deemed valid – even if it would actually have been unlawful.
- Not the diagnosis but the actual effects on ability to work are relevant under employment law – do not let yourself be pushed into revealing more details than necessary.
- A dismissal "for illness" is demanding to justify under employment law (negative health prognosis, significant impairment of operations, weighing of interests) – blanket statements by the employer are not automatically enough.
- With recognised severe disability, special protection against dismissal additionally applies, requiring the consent of the Integrationsamt (inclusion office) – see the separate topic page.
In depth · legal basis, figures and practice – for advisers and professionals
Dismissal due to illness
According to labour court case law, a dismissal due to illness is only valid if cumulatively there is a negative future prognosis regarding further illness, a resulting significant impairment of operational or economic interests, and an overall weighing of interests that is, in the end, unreasonable for the employer. A single, even longer, period of incapacity for work is generally not automatically enough for this.
Duties of disclosure
In principle there is no duty to tell the employer the diagnosis of an illness; medical confidentiality and personality rights protect this information. Exceptions may arise from safety-relevant activities in which fitness for work directly affects dangers to third parties.
Unfair dismissal claim
Anyone wishing to challenge a dismissal must bring a claim before the labour court within three weeks of receiving it (§ 4 KSchG); otherwise the dismissal is deemed valid from the outset under § 7 KSchG, regardless of its lawfulness in other respects.
General Equal Treatment Act (AGG)
A chronic mental illness can in an individual case count as a disability within the meaning of the AGG if it impairs participation in working life for an indefinite period. Discrimination on this ground can trigger claims for compensation or damages; claims must be asserted in writing within two months of knowledge of the discrimination.
A question about your situation that this page does not answer? Write to us or use the contact form – we will tell you which office is responsible and what to bring. Free of charge, without individual legal advice.