Sometimes the sick note exactly matches the notice period that an employee has. Is everything okay and will continued payment of wages come? Not always, say Germany’s highest labor judges.
According to a decision by the Federal Labor Court, employers can question sick notes if they cover the period of a notice period. The evidentiary value of medical certificates of incapacity for work could be shaken “if, after receiving notice of termination, the incapacitated employee presents one or more follow-up certificates that precisely cover the duration of the notice period,” according to a ruling by Germany’s highest labor 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, it is always necessary to assess the overall circumstances on a case-by-case basis,” said the federal labor judges. A case from Lower Saxony was negotiated.
The plaintiff was employed as a helper by a company. The day before he received a letter of dismissal, he submitted a certificate of incapacity for work, which was extended twice until the end of his notice period. The next day he was able to work again and started a new job. His ex-employer refused to continue paying him wages. The worker objected to this – successfully in the lower courts in Lower Saxony, which granted him the right to continued payment of wages.
Former employer appeals
However, his ex-employer’s appeal before the Federal Labor Court was successful, at least for the majority of the notice period – although the plaintiff was able to “prove his alleged inability to work with properly issued medical certificates of incapacity to work”.
According to the Federal Labor Court, the employer could undermine their evidentiary value if they present and possibly prove circumstances which, when viewed as a whole, “give rise to serious doubts about the employee’s inability to work.” It is irrelevant whether it was a termination by the employee or by the employer.
The state labor court should now examine whether the plaintiff can demonstrate and prove an inability to work due to illness from the first sick note after receiving the notice of termination – as a prerequisite for the entitlement to continued payment of wages.
Source: Stern
