If an employee who is unfit for work submits, after having received a notice of termination, one or several (follow-up) certificates of incapacity for work which perfectly match the term of the notice period, and if he starts a new employment immediately after termination of his old employment, the certificates’ evidential value may be compromised with the consequence that the employee has the burden of proof for an actual incapacity for work due to illness.
This was concluded by the German Federal Labor Court (“BAG”) in a case decided in December 2023 (BAG, decision of December 13, 2023 – 5 AZR 137/23). With such decision, the court largely overruled the lower courts’ decisions.
The plaintiff employee had been employed by the defendant since March 2021. On May 2, 2022, he submitted a certificate of incapacity for work for the period from May 2 to 6, 2022. After the defendant had terminated the employment by letter of May 2, received by the plaintiff on May 3, with effect as of May 31, 2022, the plaintiff submitted two follow-up certificates (dated May 6 and May 20, 2022). These certified his incapacity for work until May 20 and May 31, 2022, respectively. From June 1, 2022, the plaintiff had recovered and started a new employment.
The defendant refused to continue to pay the plaintiff’s remuneration as the submitted certificates of incapacity for work’s evidential value was compromised. The plaintiff, on the other hand, held the opinion he should be granted unrestricted continued remuneration as he had already been unfit for work before he received the notice of termination.
The plaintiff filed an action for continued remuneration for the period from May 1 through 31, 2022, which was fully upheld by both lower courts (cf. Lower Saxony Regional Labor Court (“LAG”), decision of March 8, 2023 – 8 Sa 859/22). The LAG had justified its decision by stating the certificates’ evidential value was not compromised because the plaintiff had already been ill before the dismissal was announced.
The defendant filed an appeal against the LAG’s decision, which was largely successful.
The BAG concluded that, at least for the period from May 7 through 31, the follow-up certificates’ evidential value was compromised. This did not apply to the period from May 2 through 6. As the plaintiff neither had any knowledge nor any indications of his impending dismissal, the start of the incapacity for work and receipt of the notice of termination did not coincide for such period. Since the defendant, for its part, did not submit any further evidence in connection with the evidential value of the certificate for this period being compromised, the BAG upheld the lower court’s decision in this respect and confirmed the plaintiff’s entitlement to continued remuneration for the period from May 2 through 6.
For the period from May 7 through May 31, on the other hand, the BAG held that there was a temporal coincidence which, however, had not been sufficiently taken into account by the LAG. Such temporal coincidence and the fact that the plaintiff had recovered and started a new employment immediately after the notice period’s expiry would result in the follow-up certificates’ evidential value being compromised and a reversal of the burden of proof. It was up to the plaintiff to demonstrate and prove that he was unfit for work during such period. The LAG had not dealt with such fact any further as it had denied a coincidence and therefore, in its view, this question did not even arise.
Therefore, the BAG had referred the matter back to the LAG for further hearings and a corresponding decision. The LAG will now have to examine whether the plaintiff can sufficiently prove his incapacity for work. Thus, the proceedings’ outcome is still open.
With its decision, the BAG underlined that a certificate of incapacity for work’s evidential value is not set in stone but can definitely be compromised. The BAG did emphasize that all circumstances had to be examined in each individual case. However, if the certificate(s) of incapacity for work cover the notice period’s entire term and if these certificates are submitted after getting knowledge of the dismissal, the BAG sees a coincidence between the dismissal and the certificate of incapacity for work which results in a reversal of the burden of proof to the employee’s detriment.
Even if it cannot be ruled out that the employee will be able to successfully prove his incapacity for work and a continued remuneration will have to be paid, employers should in future doubt the certificate of incapacity for work’s evidential value in these cases and only pay continued remuneration if the employee submits further evidence for their incapacity for work. Such approach is not without risk, as the employee can sue for payment of continued remuneration; however, it will increase pressure on the employee to carefully consider whether or not to submit a certificate of incapacity for work after a dismissal.