Germany: Challenging Probative Value of Employees’ Sick Notes During Notice Period

Authors: Verena Braeckeler-Kogel, MAES (Basel) and Meike Christine Rehner

Almost every employer is familiar with the situation where employees suddenly submit a certificate of incapacity for work in the immediate context of a dismissal. For a long time, this practice was not contested, as a doctor’s certificate of incapacity for work generally has a high probative value. It leads to the presumption that an illness actually existed. The certificate itself is generally considered sufficient evidence for the incapacity for work in legal proceedings, unless the employer can present (and prove) facts that undermine the probative value. Therefore, employers were often still obliged to continue to pay remuneration, even if they had considerable doubts as to whether the employee was actually incapacitated for work.

There are several constellations recognised by case law where the probative value of a doctor’s certificate can be undermined (e.g., when the employee requested holidays for a certain period of time, this request was denied, and the employee then submitted a certificate of incapacity for work for the same period). Since the ruling on 8 September 2021, the Federal Labour Court has recognised another such category: the court ruled that the probative value of a certificate of incapacity for work can be undermined if the certified incapacity for work precisely covers the notice period after a termination of employment has been submitted by the employee. In this case, employees must further substantiate that they were actually incapacitated for work in the event of a dispute, e.g., by releasing the treating doctor from the duty of confidentiality.

In its ruling of 13 December 2023, the Federal Labour Court further extended the scope of the 2021 ruling. Firstly, it was clarified that undermining the probative value applies equally to employer and employee notices of termination. It was also emphasized that the case law applies not only to initial certificates but also to subsequent certificates. This means that the probative value of any certificate of incapacity for work issued after a notice of termination has been served by either party may be undermined. This applies even if an initial certificate was issued before the notice of termination was served, and the incapacity then extends beyond this date. Any coincidence in time between the (extension of the) certificate of incapacity for work and the notice period can, therefore, lead to the probative value of the certificate being undermined.

Practical Points

• If an incapacity for work coincides with a termination of the employment by either party and employers have doubts as to whether the incapacity actually exists, they should always consider withholding pay for the duration of the certified illness.
• In the event of a dispute, the employee is then required to provide a detailed explanation of the reasons for the incapacity to work based on the case law of the Federal Labour Court. If the employee is able to do so, the remuneration must be paid retroactively.