Work - 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.
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", according to the federal labor 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 challenged this - with success in the lower courts in Lower Saxony, which granted him the right to continued remuneration.
Former employer lodges an appeal
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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- The notice period for the employee in Erfurt was marred by a dispute over sick leave, as the employer questioned the validity of the medical certificates, citing the Federal Labor Court's ruling on doubtful sick notes during notice periods.
- The employee, although able to provide proper medical certificates of incapacity for work, was ultimately deemed unable to prove his incapacity for work beyond the initial sick note after receiving termination notice, according to the Federal Labor Courts' examination of processes in Germany.
- In response to the lower court's decision granting continued remuneration to the employee, the former employer lodged an appeal to the Federal Labor Court, arguing that the sick notes covered the notice period and could potentially be undermined with compelling evidence.
- The case originated in Lower Saxony, where an employee, about to be terminated, submitted a certificate of incapacity for work the day before and continued on sick leave during the notice period, all while finding new employment immediately afterward.
- When the employer refused to pay the employee's salary beyond the notice period, the employee filed a lawsuit in Lower Saxony, ultimately winning the right to continued remuneration in the lower courts, but with the employer's eventual appeal to the Federal Labor Court, only part of the notice period's salary was regained.
- In the controversial decision, the Federal Labor Court declared that the employer can challenge sick notes when they cover the notice period and present compelling evidence to cast serious doubts on the employee's incapacity for work, irrespective of who initiated the termination.
- It remains to be seen whether the employee, in this particular case from Lower Saxony, can demonstrate and provide evidence of his illness from the first sick note following the notice of termination, proving his entitlement to continued payment of remuneration to bypass the employer's successful challenge at the Federal Labor Court.
Source: www.stern.de
