Evidentiary value of a certificate of incapacity for work – sickness after notice of termination

According to the BAG’s latest decision, the evidentiary value of a certificate of incapacity for work is diminished if the certificate confirms an employee’s incapacity for work immediately after a notice of termination and if such incapacity for work lasts exactly until the notice period’s expiry. In such case, the employee must demonstrate and prove his incapacity for work.

German Federal Labor Court (“BAG”), decision of September 8, 2021 – 5 AZR 149/21 -
Previous instance: Braunschweig Labor Court, decision of July 24, 2019 - 3 Ca 95/19, Lower Saxony Regional Labor Court, decision of October 13, 2020 – 10 Sa 619/19

In the decision’s underlying facts, the employee terminated his employment on February 8, 2019 in due time with effect from February 22, 2019, and on the same day submitted a certificate stating the employee was ill until exactly the last day of the employment relationship, i.e. the certificate covered exactly the duration of the notice period. The employer refused to continue payment of wages; therefore, the employee filed a corresponding claim for continued payment of wages with the labor court.

The lower courts upheld the action. The appeal before the BAG was successful after the appeal had subsequently been admitted at the employer’s request.

According to the BAG, the employee has proven his inability to work by submitting a certificate of incapacity for work, which generally has a high evidentiary value. However, such evidentiary value is diminished if there are serious doubts about the inability to work due to the circumstances presented.

In the present case, the evidentiary value of the certificate of incapacity for work is diminished as it covers precisely the notice period’s term. Insofar, it was up to the employee to demonstrate and prove the incapacity for work, which, according to the BAG, would have been possible by hearing the attending physician as a witness, after releasing him from his medical confidentiality obligation. A witness hearing did not take place despite the court's advice.

Note:

The certificate of incapacity for work generally has a high evidentiary value. However, if the time and duration of the certified incapacity for work give rise to doubts, employers can refer to the BAG’s case law, in particular if the period of incapacity for work and the notice period are identical. However, it is not yet clear from the BAG press release whether these principles will also apply in case a termination was initiated by the employer. This would be desirable in order to reduce the frequency of sudden sick notes after a notice of termination by the employer in future.

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