Termination of employment and subsequent sick leave
The employer may have doubts about the certificate of incapacity for work in individual cases

The Federal Labour Court (Bundesarbeitsgericht – BAG) ruled in its decision of 8 September 2021 – 5 AZR 149/21 – that the probative value of the certificate of incapacity for work can be weakened if the certified incapacity for work precisely covers the duration of the notice period.

The BAG was based on the following case:

The employee terminated her employment relationship within the probationary period on 08.02.2019 with effect from 22.02.2019 and submitted to the employer a certificate of incapacity for work dated 08.02.2019, marked as an first certificate. The employer doubted the employee’s incapacity to work and therefore refused to continue to pay her remuneration.

According to the BAG, the employee had first of all proven her alleged incapacity for work with the certificate of incapacity for work. This was, after all, the evidence provided for by law (section 5 (1) sentence 2 EFZG). However, the employer can weaken the probative value of the submitted certificate of incapacity for work by presenting and, if necessary, proving factual circumstances that give rise to serious doubts about the incapacity for work. If the employer succeeds in doing so, the employee must substantiate and prove that he was unable to work.

This can be done, among other things, by naming the attending doctor as a witness after he has been released from the duty of confidentiality. The doctor can clear up any doubts in the course of his or her examination.

In the present case, however, the employer had weakened the probative value of the certificate of incapacity for work. The accuracy of the certified incapacity for work and the duration of the notice period would give rise to serious doubts about the certified incapacity for work.

The employee had not countered these doubts, so that the inability to work could not be proven. The continued payment of remuneration was therefore justifiably omitted.

This decision of the BAG is positive from the point of view of employers who are often defenceless against certificates of incapacity for work. However, its significance should not be overestimated.

The BAG was faced with a case that is not always encountered in this form in practice. The certificate of incapacity for work was issued on the exact day of the dismissal. The duration of this initial certificate was precisely coordinated with the notice period.

How the BAG would have decided the case if, for example, the employee had not submitted an first certificate on 08.02.2019 but only on 11.02.2019 and a follow-up certificate on 18.02.2019 remains open.

A connecting factor for weakening the value of the evidence has been the fit with the notice period. Therefore, it cannot be concluded that every longer sick leave within the notice period can be doubted without further ado.

It remains a case-by-case decision whether continued payment of wages should be refused or not because of justified doubts about the inability to work. In any case, the BAG’s decision has a signal effect to the effect that the evidentiary value of the certificate of incapacity for work is not unshakeable in practice.

The further development of case law remains to be seen.

If you have any further questions on this topic, please do not hesitate to contact our experts in Labour Law.