Labor court - Sick leave during the notice period provokes doubts
According to a decision by the Federal Labor Court, employers can question sick notes if they cover the period of a notice period. The probative value of medical certificates of incapacity for work can be shaken "if the employee who is unfit for work submits one or more subsequent certificates after receiving notice of termination that precisely cover the duration of the notice period", according to a ruling by Germany's highest labor court judges in Erfurt on Wednesday.
This applies in particular if the employee "takes up new employment immediately after termination of the employment relationship" (5 AZR 137/23). "However, a case-by-case assessment of the overall circumstances is always required," said the federal labor court judges. A case from Lower Saxony was heard.
The plaintiff was employed as a helper at a company. One day before he received a letter of termination, he submitted a certificate of incapacity for work, which was extended twice until the end of his notice period. The following day, he was fit for work again and started a new job. His former employer refused to continue to pay him his salary. The employee objected to this - with success in the lower courts in Lower Saxony, which granted him the right to continued remuneration.
However, his former employer's appeal to the Federal Labor Court was successful, at least for the greater part of the notice period - even though the plaintiff was able to "prove his alleged incapacity for work with properly issued medical certificates of incapacity for work".
According to the Federal Labor Court, the employer can undermine the probative value of these certificates if it presents and possibly proves circumstances which, when "considered as a whole, give rise to serious doubts about the employee's incapacity to work". It is irrelevant whether the dismissal was by the employee or by the employer.
The regional labor court is now to examine whether the plaintiff can demonstrate and prove that he was unable to work due to illness from the first sick note after receiving notice of termination - as a prerequisite for entitlement to continued payment of remuneration.
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Source: www.stern.de
