If an employee terminates his or her employment relationship and is unable to work because of illness on the day that notice is given, this may call the evidentiary value of the certificate of incapacity to work into question if the certified incapacity to work exactly matches the notice period.
Federal Labour Court, judgment of 8 September 2021 – 5 AZR 149/21
Background
On 8 February 2019 the employee terminated her employment relationship as of 22 February 2019. At the same time, she presented a physician’s certificate of incapacity to work dated 8 February. This certificate was the first notification of illness and stated that she was expected to be unable to work from 8 to 22 February. The employer refused to continue paying her salary, arguing that the certificate of incapacity to work corresponded exactly to the period of notice. The employee brought an action for continued payment of salary for the period in which she had been certified as unable to work. The labour court upheld the action, but the regional labour court subsequently dismissed it.
Decision
The plaintiff’s appeal was also unsuccessful.
As a general principle, the employee bears the burden of presentation and proof with regard to whether the requirements for continued payment of salary have been met. The employee generally proves that he or she is unable to work owing to illness by submitting a physician’s certificate of incapacity to work. This is the most important evidence of incapacity to work because of illness and is provided for by statute. The employer can call the evidentiary value of the certificate of incapacity to work into question by presenting and proving specific circumstances that cast doubt on the employee’s illness. If the employer succeeds in doing so, it is then in turn the employee’s responsibility to present and prove specific facts indicating that he or she was in fact ill. One way for the employee to do this is to have the treating physician cross-examined once the latter has been released from his or her duty of confidentiality.
In the present case, the Federal Labour Court recognised that there were serious doubts as to the employee’s incapacity to work because the certified incapacity to work and the beginning and end of the notice period coincided. The Court held that the evidentiary value of the certificate of incapacity to work had been called into question. The burden of presentation and proof that she had in fact been ill over the period stated then passed back to the employee. Despite the Court’s instruction in this regard, she was unable to meet this requirement.
Gleiss Lutz comments
This is a welcome decision. It continues the Federal Labour Court’s case law according to which the requirements placed on employers’ submissions regarding employees’ incapacity to work should not be excessive. This is because as a rule the employer does not have detailed information on the employee’s state of health. The employer can call the evidentiary value of the certificate of incapacity to work into question by arguing that there are grounds for serious doubts. According to the case law, employee conduct that provides grounds for serious doubts includes where the employee (i) threatens to stay away from work, (ii) is repeatedly unable to work around vacations, public holidays, the beginning and end of the week etc., (iii) gives contradictory information on when the incapacity to work began, (iv) does not attend an appointment at the statutory health insurance fund’s medical service, (v) acts in a way that is suspicious for someone who is sick, (vi) is certified as unable to work by a physician whose certificates arouse suspicions because they are issued so frequently, and now (vii) presents a certificate of incapacity to work that covers the entire notice period.
Forward