High sickness rates present significant challenges for employers. Previously, if employers had doubts about an employee's actual incapacity for work, they faced significant challenges due to the high probative value of the certificate of incapacity for work. However, recent developments in case law offer new opportunities to address cases of suspected faked inability to work more effectively. The following article outlines the cases in which case law has recently deemed the evidential value of a certificate of incapacity for work to have been undermined.
Basic Considerations on the Probative Value of Sick
Leave Certificates
It is the employee's responsibility to demonstrate that they
are unable to work. The employee can provide this initial evidence
by submitting the sick leave certificate. In the event that the
employer has reservations regarding the employee's inability to
work, it is the responsibility of the employer to present evidence
that calls into question the probative value of the sick leave
certificate. It is sufficient for the employer to present reasons
that seriously challenge the accuracy of the sick leave
certificate. If these reasons are deemed plausible, it is for the
employee to substantiate their claim of incapacity for work. It
should be noted that current case law is dynamic and subject to
frequent change. The following case categories therefore represent
an interim status and are intended to provide a general overview,
rather than a conclusive list.
No Continued Payment of Salary in the Event of a
"Precisely Fitting" Sick Note
The change in case law is based on the ruling of the Federal Labor
Court (Bundesarbeitsgericht, BAG) dated 8 September 2021
(5 AZR 149/21). The court ruled that the probative value of the
sick leave certificate may be called into question if the sick
leave period coincides with the notice period. In this particular
case, the employee had also provided the employer with a sick leave
certificate along with the notice of termination, which covered the
period up to the last day of the notice period. This temporal
coincidence was sufficient for the Federal Labor Court to question
the value of the evidence. In a decision dated 18 September 2024,
the court confirmed this case law (5 AZR 29/24) recently.
"Sick" until the Commencement of the New
Job
The Federal Labor Court ruled on a comparable case in 2023
(judgment dated 12 December, 5 AZR 137/23). The issue at hand was
that the employee initially only submitted a sick leave certificate
for five days. After the employee submitted the sick leave
certificate, the employer terminated the employment contract. The
employee then submitted two subsequent sick leave certificates,
which coincidentally ended the terminated employment relationship.
One day later, the employee began a new employment relationship
with another employer. The court determined that the probative
value of the two subsequent certificates of incapacity for work was
diminished due to the temporal coincidence between the termination
and the incapacity for work, given that the termination notice was
issued.
Inconsistencies in the Sick Leave Certificate and Sick
Note following Unwelcomed Work Instructions and Rejection of a
Vacation Request
In a ruling by the Lower Saxony Higher Labor Court
(Landesarbeitsgericht, LAG), a number of factors
contributed to the initial evidence presented in the sick leave
certificate being deemed questionable (cf. ruling dated 31 May
2024, 14 Sa 618/23). In this case, the sick note was issued shortly
after the employee's vacation request was rejected and an
unwelcome work instruction was issued. Additionally, the sick note
coincided precisely with the period preceding a planned sailing
vacation, which the employee commenced concurrently with the
termination of the employment relationship due to dismissal.
Furthermore, the employee's stated conditions were not aligned
with the diagnoses on the sick leave certificates, particularly the
unspecific ICD code. Additionally, there was no specific medical
diagnosis provided after seven days, as required by the German
Incapacity for Work Directive
(Arbeitsunfähigkeits-Richtlinie) in the version
applicable in May 2023.
Too Lengthy Sick Note and Other Errors in the Sick Note
Certificate
A further judgment by the Lower Saxony Higher Labor Court (6 Sa
416/23) dated 18 April 2024, addressed similar violations of the
German Incapacity for Work Directive. In this case, the
employee's inability to work was certified for a period
exceeding two weeks, contrary to the Incapacity for Work Directive.
However, there was insufficient evidence to demonstrate that this
was medically necessary. The medical certificate did not provide a
concrete description of the intensity and nature of the
employee's symptoms, nor did it justify the length of the
incapacity for work. Furthermore, the employee did not sufficiently
substantiate which specific health restrictions would have
prevented him from carrying out his work. General assertions such
as a gastrointestinal infection were not sufficient to conclusively
demonstrate the incapacity to work.
No Medical Specialist Consulted – No Medication
Taken
The Higher Labor Court of Mecklenburg-Vorpommern (ruling from 7 May
2024, 5 Sa 98/23) also established important evidence in a recently
published decision. In the case, the terminated employee's
subsequent sick notes not only covered the entire period of the
notice period, but extended beyond it. Nevertheless, the employee
commenced a new job immediately following the termination of the
previous employment. Despite medical advice to the contrary, the
employee did not consult with a specialist or obtain the prescribed
medication. The court did not consider this to be sufficient
grounds for substantiating the employee's inability to work. On
the contrary, this indicated that the employee was at best
experiencing only minor symptoms.
Behavior that is Detrimental to Recovery
While there are no fundamentally new developments, there is
nevertheless important evidentiary support for cases where employee
behavior is detrimental to recovery. The Higher Labor Court of
Berlin-Brandenburg (cf. ruling dated 5 July 2024, 12 Sa 1266/23)
recently addressed such case. In the decision, the employee on sick
leave participated in handball matches as a player and referee.
This was deemed sufficient for the court to question the
reliability of the sick leave certificate.
Conclusion
The case groups demonstrate the diverse range of cases with regard to the probative value of the certificate of incapacity for work. Furthermore, these examples demonstrate the importance of seeking legal advice, given the level of detail involved. It is crucial to conduct a thorough individual case assessment, considering all circumstances, to successfully defend against a claim for withheld pay or to reclaim overpayments. On a positive note, the courts have established that the probative value of the sick leave certificate is no longer accepted in the event of irregularities without contradiction. This effectively counters misuse.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
