When are employees entitled to continued remuneration and when is there a uniform case of prevention in the case of successive periods of illness? The Higher Labour Court of Berlin-Brandenburg (LAG Berlin-Brandenburg) has reached a decision on this question in favour of employers.
The parties were in dispute over the continued remuneration in the event of illness. The claimant was repeatedly on sick leave for six weeks with different diagnoses from the same doctor. In each case the claimant employee submitted new initial certificates to the defendant employer after the expiry of six weeks. In each case, a work-free weekend was between the day of the last incapacity of work attested by the last follow-up certificate and the first day of the incapacity of work attested by the (new) first certificate. The defendant contested that the periods of incapacity of work were first illnesses and stopped the continued remuneration after six weeks. The employee filed a claim and demanded continued remuneration.
The Reginal Labour Court of Berlin-Brandenburg (LAG Berlin-Brandenburg, 17 November 2022 – 10Sa 1471/21) ruled that the claimant would have had to prove that there was no uniform case of incapacity because the incapacity to work due to the “previous” illness had already ended before the new illness occurred. In the present case the claimant was not able to provide the respective proof. Therefore, the employer was not obliged to pay further claims for continued remuneration beyond the first six weeks.
When is there a uniform case of prevention?
Generally, and without dispute, the entitlement of continued remuneration in case of incapacity to work is limited to a period of six weeks, even if during an existing incapacity to work a new illness occurs which also results in the incapacity to work (“principle of unity of the case of incapacity”).
According to the case law of the Federal Labour Court (BAG dated 11 December 2019 – 5 AZR 505/18), a uniform case of prevention is generally sufficiently indicated if there is a close temporal connection between a “first” incapacity to work due to illness and a further incapacity to work certified to the employee by way of the “first certificate”. Such a close temporal connection exists if the certified periods of incapacity to work either follow each other or if there is only one day or weekend off from work between them.
In the present case, the previous certificates of incapacity to work always ended on a Friday and the subsequent certificate of incapacity to work always began on the following Monday. As a witness, the doctor confirmed that she, like her colleague, would always issue the certificates of incapacity to work that way when there was no obligation to work at the weekend.
Who has to proof what?
If the employer provided substantial evidence that the illness with regard to which the employee was certified as incapable to work actually overlap, the Federal Labour Court considered the evidential value of the certificate of incapacity to work issued as a (new) initial certificate to the employee with regard to the “new” illness to be “shaken”.
However, the employee can then prove that the time at which his or her previous illness ended was before the beginning of the new incapacity to work. For this purpose, the certificate of the attending doctor may be used as evidence.
In the case at hand the claimant employee was not able to provide this evidence: In fact, during the trial, the attending doctor described that she usually did not examine the previous illness if the patient made no further comments in this regard. Further, the doctor also stated that she did not determine the exact beginning of the (new) illness, which was the basis for the new period of incapacity to work certified on Monday.
The court therefore assessed that the claimant’s incapacity to work was based on a uniform case of prevention, so that there was no obligation for the defendant employer to continued remuneration beyond the first six weeks.
When is it worthwhile for employers to review a uniform case of prevention?
In the meantime, the appeal proceedings admitted by the Regional Labour Court have been terminated without a decision on this merit. The parties have declared the main proceedings to be settled (Federal Labour Court decision dated 20 July 2023, ref. 5 AZR 65/23).
In this respect – and this is pleasing from the employer’s point of view – the above-mentioned findings on the shaking of the evidential value of a certificate of incapacity to work issued as an initial certificate remain valid.
Hence, if initial certificates are submitted in the case of an employee’s continued uninterrupted incapacity to work after the expiry of six weeks, it may be worthwhile to argue that there is a uniform case of prevention.