Update Employment Law July 2022
Dismissal based on submission of proof of Corona tests obtained from the Internet
ArbG (Labor Court) Bielefeld, March 24, 2022 – 1 Ca 2311/21
In its judgment dated March 24, 2022, the Labor Court Bielefeld has taken a stance on the effectiveness of the submission of proof of Corona tests, obtained from the Internet without a personal examination. This judgment is also of interest in relation to similar matters concerning certificates of incapacity for work, issued without an examination.
With effect from November 22, 2021, the defendant imposed the 3-G rule (vaccinated, recovered, tested) at the place of work. It was a known fact that, under this rule, all employers were obliged to monitor and document the 3-G rule on a daily basis by checking test results. The defendant initially offered its non-vaccinated employees daily, supervised tests. The non-vaccinated plaintiff took advantage of this offer on a daily basis. However, the defendant discontinued this offer of tests with effect from December 1, 2021. Non-vaccinated persons were now required to provide proof of testing via a test center.
On the evening of November 30, and December 1, 2021, the plaintiff made use of an offer by Dr. B. on the internet. The motivation stated by the plaintiff for this was that he had had no time to visit a test center. The internet offer by Dr. B. involves a testing procedure in which a self-purchased self-test is personalized by inscribing the date and initials on the test cassette. Photos of the test cassette must be taken before and after the self-test. A questionnaire must also be completed. Within five minutes of the end of the procedure, the PDF with the test result is then e-mailed to the test person by the doctor - without any consultation.
The plaintiff used the test results, obtained in this manner, to gain access to the defendant's company premises. However, because of this, the defendant obtained information on the test offered by Dr. B. This initially resulted in a personal meeting at which the plaintiff was informed that the submission of the test result could constitute a criminal offense, and that summary dismissal was also intended. Following a hearing of the staff council, the defendant terminated the employment relationship with the plaintiff extraordinarily, and also ordinarily by way of precaution.
However, the Labor Court Bielefeld ruled that the notice of termination served had not ended the employment relationship.
No important cause within the meaning of Section 626 BGB (German Civil Code)
In the opinion of the Labor Court there is no important cause within the meaning of Section 626 (1) BGB. The defendant had not succeeded in proving that the plaintiff had submitted a falsified health certificate. This would have required submission and proof of the fact that the plaintiff had been Corona-positive. However, there was no dispute between the parties concerning the fact that the test results submitted had all been negative. It was not possible to prove false certification - negative test despite positive result.
Consequently, the plaintiff had "only" surreptitiously obtained access to the company through an invalid test certificate. According to the Labor Court, the test certificate did not satisfy the requirements on a certificate as defined in the Infection Protection Act. The test was not a "supervised test by a recognized provider". As a result, the plaintiff had committed at least an administrative offense, and simultaneously put the defendant at risk of also being liable to a fine. This would be the case if the defendant were to employ staff who had not submitted either a valid vaccination certificate or a valid negative test certificate.
No supervised test as defined in the Infection Protection Act
In the opinion of the Labor Court Bielefeld it was clear that the completion of a questionnaire, with or without the sending of photos of a negative rapid antigen self-test to the medical office of Dr. B., is not a Corona test that has been "supervised" by the medical office. It is fundamentally correct that the doctor in charge is entitled to trust the information provided by a patient. A prerequisite for this is however the existence of a doctor-patient relationship. This was not the case in the matter before the court, as the plaintiff had never personally visited or spoken to the medical office or doctor performing the test. It was not therefore possible to assume a close relationship between doctor and patient. It was also clear that the patient could not supervise an own Corona test as proxy of the doctor.
The court had no sympathy whatsoever for the submission of a negative test certificate that did not comply with the statutory requirements, solely for the purpose of avoiding proof of a daily test at a public center. Nevertheless, the court was of the opinion that, in the case at hand, the issuing of a written warning would have been sufficient as a milder measure. Another factor in favor of the plaintiff was that he had submitted tests from public centers as from December 3, 2021, without the issuing of a related written warning. The possibility of the impaired relationship of trust being "repaired" by a written warning could not therefore be ruled out.
Even if, in the case at hand, the Labor Court considered the dismissal unlawful, the court's clear rejection of the service offered by the medical office of Dr. B. - that also offers certificates of incapacity for work on its homepage - is welcome. In the future, labor courts are likely to have to concern themselves with this form of certificate of incapacity for work.