The temporal coincidence of a certificate of incapacity for work and termination

The Federal Labour Court (Bundesarbeitsgericht, “BAG”) has once again set limits to the evidential value of certificates of incapacity for work. In its ruling of 13 December 2023 (5 AZR 137/23), the BAG repeatedly dealt with the evidential value of certificates of incapacity for work in the context of a termination by the employer.

The case

The subject of the ruling was a dispute that was initially settled before the Regional Labour Court of Lower Saxony in 2023. The parties were in dispute over a claim for continued remuneration. The plaintiff had been employed by the defendant since March 2021. On 2 May 2022, he submitted the first certificate of incapacity for work to the defendant, which covered the period from 2 May to 6 May. The defendant terminated the plaintiff's employment with effect from 31 May 2022, by letter dated 2 May 2022. The letter of termination was received by the plaintiff on 3 May 2022. After receiving the letter of termination, the plaintiff submitted two further certificates of incapacity for work covering the period up to the end of the notice period. The plaintiff recovered at the end of the notice period and started a new job the next day. The defendant believed the evidential value of the certificates of incapacity for work to be undermined and refused to continue to pay remuneration for the period from 1 May to 31 May. The plaintiff disagreed and filed a lawsuit.

The evidential value of a certificate of incapacity for work

The certificate of incapacity for work generally has a high evidential value in court proceedings. When it comes to an employee's claim for continued payment of remuneration, the certificate is the most important evidence for incapacity for work due to illness. If an employee submits a proper certificate of incapacity for work as evidence during the proceedings, the judge generally assumes that proof of incapacity for work due to illness has been provided. Please refer to our newsletter article from the previous month for further information on the requirements for a proper certificate of incapacity for work and the consequences if the certificate does not fulfil these requirements.

An employer has the opportunity of disproving the certificate of incapacity for work. This requires the employer to demonstrate and prove factual circumstances that lead to doubts on the employee's illness. The temporal coincidence of termination and incapacity for work was already considered by the BAG to indicate an undermining of the evidential value of a certificate of incapacity for work.

The lower courts

The Regional Labour Court of Lower Saxony ruled in favour of the plaintiff. It did not consider the evidential value of the certificates of incapacity for work to be undermined. This was justified by the lack of temporal coincidence of the certificates of incapacity for work and the notice of termination. The temporal coincidence was denied, as the first certificate of incapacity for work was already submitted before the notice of termination was received. The fact that an employee is on sick leave due to illness until the end of the notice period and immediately recovers the next day and starts a new job is not sufficient to undermine the evidential value of the certificates of incapacity for work.

The ruling of the BAG

With its ruling, the BAG has now opposed this, and therefore has further developed its case law on undermining the evidential value of certificates of incapacity for work.

First, the BAG pointed out that it is irrelevant, for the undermining of the evidential value, whether the employee was terminated by the employer or whether the employee terminates the employment themselves. Furthermore, it can also make no difference whether evidence of incapacity for work is provided by one or several certificates. The mere existence of several consecutive certificates of incapacity for work does not prevent their evidential value from being undermined if the employer submits the necessary facts.

Unlike the lower courts, the BAG did not consider that the first certificate of incapacity for work - issued prior to the employer's termination - was an obstacle to undermining the evidential value of the certificates. Only the certificate that was issued before the termination could not be undermined, as there was no coincidence in time between the start of the incapacity for work and the receipt of the notice of termination. However, a specific assessment of the overall circumstances regarding the subsequent certificates of incapacity for work shows that their evidential value is undermined. The subsequent certificates of incapacity for work provided for a precise extension of the incapacity for work until the end of the notice period, i.e. a coincidence in time.

In addition, it must be considered that the employee accepted new employment immediately after the termination of the employment relationship. In view of these overall circumstances, the employer was therefore able to at least undermine the evidential value of the certificates of incapacity for work following the termination.

However, this ruling does not imply that the employer can avert the employee's claim to continued payment of remuneration. Rather, it is now up to the employee to demonstrate and prove the existence of his incapacity to work in the period following the termination. As a result, the BAG referred the case back to the Regional Labour Court of Lower Saxony. It remains to be seen what requirements the court will place on the employee and what evidence will suffice to convince the court.

Practical tips

With this ruling, the BAG further restricts the high evidential value of certificates of incapacity for work. A coincidence in time is not generally excluded by the fact that the employee submits a certificate of incapacity for work before receiving the notice of termination. Nor does it matter who issued the termination or how many certificates of incapacity for work are available. The overall circumstances are decisive.

Overall, the development of the BAG's case law can be seen to be positive. On the one hand, the employer regularly has no knowledge of the causes of the employee’s illness. On the other hand, it is only possible to a limited extent to present facts to undermine the evidential value of certificates of incapacity for work. As a result, it is only appropriate not to overstretch the requirements of a defence.

In the event of doubts regarding the actual incapacity to work of an employee, employers should therefore carefully investigate which circumstances speak against an illness-related incapacity to work in the specific case. The more circumstances the employer can clarify and prove, the higher the probability that the evidential value of the certificate of incapacity can be undermined.

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