If employees are unable to work due to illness, they are generally entitled to continued payment of remuneration in accordance with the Continued Payment of Remuneration Act. But what happens if the notice of termination and sick leave are submitted at the same time?
However, if a dispute arises over the question of illness, the employee must first prove in any court proceedings that he or she was actually unable to work due to illness in accordance with the principle of the graduated burden of proof developed by case law. However, he is first on the safe side if he can present a doctor’s certificate of incapacity for work (“yellow slip”). Thus, he has sufficiently proven his illness.
The employer can only shake this initial evidentiary value of the “yellow slip” if he is aware of concrete facts that give him serious doubts about the certificate. This is the case, for example, when he has rejected an employee’s request for leave and the employee, before submitting the certificate, announces to him “he will definitely go on leave”.
However, even after this, an employee can dispel any doubts that may arise in court proceedings by releasing the doctor who issued the certificate from the obligation to maintain medical confidentiality and having him or her credibly declare in court as a witness that there really was an incapacity to work due to illness.
In its recent decision dated September 8, 2021 (Bundesarbeitsgericht, Urteil vom 8. September 2021 – 5 AZR 149/21), the Federal Labor Court addressed the issue of the probative value of a certificate of incapacity for work and concluded that a passable sick note can give rise to serious doubts in the event of termination.
The decision was based on the following facts:
A commercial employee had sued for continued payment of wages because her employer had refused to pay her. The employment relationship of the parties was established at the end of August 2018. On February 8, 2019, i.e., while still in the probationary period, the plaintiff terminated the employment relationship as of February 22, 2019, and at the same time submitted to the defendant a certificate of incapacity for work dated on the termination date and marked as an initial certificate. The AU certificate therefore lasted until the last day of the notice period.
The defendant refused to continue to pay remuneration in the event of illness. Since the certificate precisely covers the remaining term of the employment relationship after the self-termination, it has no evidentiary value. The plaintiff, on the other hand, argued that she had been properly on sick leave. She had been facing burnout.
In each case, the lower courts upheld the action.
The Federal Labor Court has now overturned the ruling of the lower courts and upheld the employer’s claim. Although the plaintiff had provided evidence of her incapacity for work in the form of a certificate of incapacity for work, the probative value of this certificate had been undermined.
The court saw the serious doubts in the coincidence between the notice of 08. to February 22 and the incapacity for work certified on the same day until the end of the notice period.
The plaintiff had not been able to dispel this serious doubt – even after the court had pointed it out. The action therefore had to be dismissed.
Conclusion:
In principle, a certificate of incapacity for work issued by a physician continues to have evidentiary value.
However, the employee should be careful not to create any circumstantial evidence that would indicate faking the illness as a reason for incapacity for work. Without a concrete reason, the employer will not succeed in shaking the probative value of an AU certificate.
If, however, the employer does succeed in doing so in exceptional cases, the employee has no choice but to release his or her doctor from the duty of confidentiality so that the doctor can confirm in court that the illness actually existed. In the case underlying the BAG’s decision, the plaintiff there did not release her doctor from the duty of confidentiality (for whatever reason), which was ultimately her undoing.
Are you having difficulty enforcing your entitlement to continued payment of wages?
If you also have difficulties with your employer regarding continued payment of wages in the event of illness, I advise you to seek legal advice. As a competent contact person with years of union experience, I am at your disposal. Together with you, I will check whether you are entitled to continued payment of wages and whether you should file a lawsuit.
Please contact me by e-mail or phone. In a personal meeting appointment we can discuss the details and further procedure.
