Employee sickness despite sick leave

Employees – prove illness despite sick leave?

Employees must prove illness despite sick leave in case of doubt

Calling in sick on the day of termination is suspect. A company did not pay salary because of this, despite a medical certificate. The Federal Labor Court now says: This can be legal.

The Federal Labor Court has strengthened the rights of employers to question a certificate of incapacity for work (AU) of their employees. The competent fifth senate decided on Wednesday in Erfurt against the background of a complaint from Lower Saxony that a doubt is justified if the sick leave goes hand in hand with a dismissal (5 AZR 149/21).

Sick leave on the day of dismissal? That looks suspicious

Employees who submit a sick note immediately after being dismissed and thus remain absent from work until the end of the notice period cannot therefore automatically expect continued payment of their salary. The Federal Labor Court ruled that if an employee gives notice of termination and is then certified as fit for work on the day of termination, this can undermine the probative value of the certificate of incapacity for work. That applies in particular if the certified incapacity for work covers exactly the duration of the notice period.

The background to the ruling was a case from Lower Saxony. The employee of a temporary employment agency had resigned at the beginning of February 2019 at the end of the month and submitted an AU on the same day. In addition, according to the employer, on the day of the exhibition she is said to have announced to a colleague in her former company that she would no longer be coming to work. There was no talk of incapacity for work in the interview. The Lower Saxony Regional Labor Court had initially upheld the woman's claim. Entitlement to continued payment of wages confirmed.

If an employee is incapacitated for work, he initially receives continued payment of remuneration and later sick pay. The prerequisite, however, is that he submits a medical AU if he is ill for more than three days. The so-called yellow slips have the legal quality of a document. Can be used as decisive evidence in court.

Sick notes often end up in court

Incapacity for work certificates are ied in Germany annually millionfold. In 2020, a total of 5.28 million cases of incapacity to work and 86 million days of absence were registered among members of the Techniker Krankenkasse alone. The AOK's Absenteeism Report 2019 shows that insured employees were absent from work for an average of 19.8 days due to sick leave. As a result, dismissals due to illness, disputes about continued payment of wages or accusations of fraud are not uncommon ies in German courts.

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"It is a regular occurrence that disputes arise in labor court proceedings about incapacity to work due to illness in connection with dismissals.", says Patrick Klinkhammer, specialist lawyer for industrial law in Cologne. Mostly it goes however either around errors of the coworker when submitting the yellow light, which the employer makes the subject of a notice, or around illness-conditioned dismissals, which an employer expressed because of substantial absence times of the coworker. "Doubting a doctor's certificate of incapacity to work is relatively rare", so Klinkhammer.

Employers' hands are tied in most cases

According to the expert, established case law gives an AU a high probative value. Only in narrowly exceptional cases could the employer shake this evidentiary value by raising serious and objectively justified doubts about the actual existence of the incapacity to work.

One of these exceptional cases was now present according to judgement in the case from Lower Saxony. From the point of view of the judges of the Federal Labor Court, the probative value of the AU was shaken because it covered exactly the remaining term of the employment relationship. The plaintiff then failed to provide sufficient evidence that she was actually incapable of work for the duration of the AU.

It is altogether quite questionable "whether the evidentiary value of the certificate of incapacity for work will continue to be maintained to the present extent in the coming years", said the Berlin specialist lawyer for labor law, Alexander Bredereck. Certificates of incapacity to work ied by telephone, for example, as were admissible during the Corona pandemic, have a diminished evidentiary value in court.

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