Update Employment Law November 2021
Contesting the evidential value of a certificate of incapacity for work
Federal Labour Court 08.09.2021 - 5 AZR 149/21
The medical certificate of incapacity for work is the legally stipulated and thus most important proof of incapacity for work due to illness. Pursuant to Section 5 (1) of the German Continued Remuneration Law (EFZG), the employee is obliged to submit a medical certificate of incapacity for work stating the existence of the incapacity for work and its expected duration if the incapacity for work lasts longer than three days - or, at the employer's request, even earlier.
The jurisprudence of the labour courts generally assigns a high evidential value to the medical certificate of incapacity for work. This means that an employment court regularly considers the employee's alleged inability to work due to illness to be proven if the employee submits a corresponding medical certificate in the legal dispute. If the employer does not want to accept a medical certificate of incapacity for work, he must present and prove specific circumstances in the legal dispute which give rise to serious doubts as to the alleged incapacity for work due to illness, whereby the doubts can result both from the certificate itself and from the circumstances of its issuing. If the employer succeeds in "shaking" the evidential value of the certificate of incapacity for work, the employee, for his part, must substantiate and prove that the incapacity for work actually existed.
The question in which cases the employer can harbour serious doubts about the incapacity for work according to these principles and thus „shake“ the evidentiary value of the certificate of incapacity for work has already been the subject of countless court decisions. The Fifth Senate of the Federal Labour Court, which is primarily responsible for legal issues relating to remuneration and continued payment of remuneration, has now had to deal with this issue once again. The peculiarity of the underlying facts lay above all in the coincidence of the employee's own notice of termination and the submitted certificate of incapacity for work.
Facts of the case
The starting point of the legal dispute was an employee's action for continued payment of remuneration against her former employer, by whom the plaintiff employee was employed from the end of August 2018 until 22 February 2019. On 8 February 2019, the plaintiff terminated the employment relationship with effect from 22 February 2019 and at the same time submitted to the defendant employer a certificate of incapacity for work dated 8 February 2019, issued as a first certificate. Thereafter, the plaintiff remained absent from work - apparently until the end of the employment relationship.
The defendant refused to continue to pay remuneration pursuant to Section 3 (1) EFZG for the period of sick leave, arguing that the probative value of the submitted certificate of incapacity to work was diminished because it covered exactly the remaining term of the employment relationship between the notice of self-termination on 8 February 2019 and the ending date on 22 February 2019. The plaintiff, on the other hand, claimed that she had been sick and demanded continued payment of remuneration for the disputed period from 8 February 2019 to 22 February 2019. After the lower courts had upheld the plaintiff's claim, the employer's appeal before the Federal Labour Court was successful.
The judgment of the Federal Labour Court is currently not yet available in full text, but is so far only available to the public in the form of a press release. However, the press release describes that the Federal Labour Court considered the probative value of the evidence submitted by the plaintiff to be „shaken“, as the coincidence between the termination of 8 February 2019 with effect from 22 February 2019 on the one hand and the incapacity for work also certified on 8 February 2019 until 22 February 2019 on the other hand, in the opinion of the competent fifth senate, gave rise to serious doubts as to the certified incapacity for work.
Since the certificate of incapacity for work was not suitable to prove the incapacity for work due to these circumstances in the opinion of the Senate, the plaintiff would have had to present further evidence with regard to her alleged incapacity for work. In the opinion of the Fifth Senate, the proof that an incapacity for work actually existed can in such cases be provided in particular by questioning the attending physician after the physician has been released from the duty of confidentiality. Since the plaintiff had not met her burden of proof regarding the existence of an incapacity to work in a sufficiently concrete manner - even after the Senate had pointed this out - the action was dismissed.
The decision of the Federal Labour Court makes it clear that the employer can counter the alleged incapacity to work and the corresponding claims for continued payment of remuneration by submitting a medical certificate under certain circumstances. The hurdles for undermining the probative value of a certificate of incapacity for work are admittedly high. Employers may, however, feel encouraged not to accept submitted certificates of incapacity for work without further ado, at least if the circumstances of the individual case suggest that the incapacity for work was faked. In addition to the coincidence in time between the notice of termination and the certificate of incapacity for work, which was decisive in the case presented, justified doubts may exist, among other things, if the employee had already announced the sick leave beforehand.