Certificate of incapacity for work has probative value despite termination

A certificate of incapacity for work proves the employee's illness even if he or she uses it to call in sick until the end of the employment relationship.

LAG Lower Saxony, judgment of 08.03.2023, ref. no.: 8 Sa 859/22

BAG, judgement of 08.09.2021, ref. no. 5 AZR 149/21

Time sequence indicates motivation to take sick leave

The Regional Labour Court (Landesarbeitsgericht, LAG) of Lower Saxony has ruled that a certificate of incapacity for work (AU) retains its probative value for illness even if the employee calls in sick exactly until the end of the employment relationship. However, it is the chronological sequence that matters. The Regional Labour Court thus deviates from the previous case law of the Federal Labour Court (Bundesarbeitsgericht, BAG), according to which a coincidence in time between termination and sick leave can certainly invalidate the probative value of an AU.

What was the specific case?

The employee of a temporary employment agency had not been deployed for several weeks and subsequently called in sick with an AU. The next day he received notice of termination at the end of the month. The employee then submitted two further medical certificates showing him to be on sick leave exactly until the end of the employment relationship. The employer doubted the existence of an illness and refused to continue paying wages.

LAG decides in favour of AU

The LAG ruled that the AU had a high probative value and that this was not invalidated: In total, there were three certificates of incapacity. However, the first sick note preceded the notice of termination. In the opinion of the LAG, the necessary causal connection between the notice of termination and the sick note, which would be required to invalidate the probative value of the AU, was therefore lacking. The other overall circumstances were not sufficient.

However, the LAG allowed the appeal on the grounds of fundamental importance, as the BAG had not yet sufficiently clarified the circumstances under which the probative value of an AU is invalidated.

Does the new electronic AU change anything in the value of the evidence?

The evidential value of the AU remains, even if employees with statutory health insurance no longer have to submit a physical AU to their employer as of 1 January 2023. The electronic transmission of the AU data to the employer is to replace this obligation. However, the paper certificate will remain for the time being as a legally provided means of evidence with a high probative value. The complete replacement of the paper certificate is only to be expected when an equivalent electronic version is available.

Conclusion

The ruling of the LAG of Lower Saxony makes it clear that a coincidence in time between termination and sick leave alone is not sufficient to invalidate the probative value of an AU. Employers should therefore, if there is any doubt about the employee's illness, carefully check whether there are other circumstances that could invalidate the probative value of AU. This could be, for example, a previous warning or a dismissal on grounds of suspicion.

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