Germany: The Probative Value of Sick Notes can be Undermined in the Case of a Close and Timely Connection with the Notice Period

Background

The plaintiff has been employed by the defendant since September 2020. From October to December 2022, he was unable to work on several occasions, as certified by his doctor. On 9 December 2022, a Friday, the last day of his sick leave, he gave notice of termination with a 15 January 2023 effectivity. He handed in the letter in person at the company on the following Monday. The following day, the plaintiff was back on sick leave again. The doctor also prescribed him medication and referred him to a psychiatrist. However, the plaintiff neither took the medication nor consulted a specialist. At the beginning of January, his doctor issued him with another sick note until 16 January 2023.

The plaintiff believed that he was entitled to continued payment of his remuneration from the first day of his illness. The physically demanding work had caused him to suffer from, among other things, insomnia and stomach problems, which the company denied.

 

Key Issues

The Regional Labour Court of Mecklenburg-Western Pomerania concluded that the plaintiff was not entitled to continued payment of remuneration against his employer.

If an employee is unable to work due to illness and is not at fault, he or she is entitled to continued payment of remuneration by the employer for the period of incapacity up to a maximum of six weeks under German statutory law. Proof of incapacity to work due to illness is usually provided by submitting a sick note from a doctor. Such sick notes generally have a very high probative value in Germany, making it difficult to effectively challenge their validity.

However, based on the newest case law, the probative value of sick notes is regularly undermined when an employee, immediately after termination of employment by himself or by the employer, submits sick notes covering exactly the remaining period of employment (see the article “Challenging Probative Value of Employees’ Sick Notes During Notice Period” from March 2024). If the probative value is undermined, the employee must explain and, if necessary, prove which specific health impairments existed and how they affected his or her ability to work.

According to the court, the plaintiff failed to do so in this case. He only disclosed the sick notes, but their probative value was undermined by the fact that they coincided with the remaining working time after the dismissal. The medication prescribed by the treating doctor and the referral to a psychiatrist indicated that the doctor considered the illness to be serious. However, the fact that the plaintiff did not take the medication without consulting the doctor and, independently, did not make an appointment with a specialist raised doubts about whether he was actually incapable of working due to illness. The plaintiff was also unable to dispel these doubts.

Practical Point

• Employers and works council now have the opportunity to develop their own company rules in relation to specific
• If the probative value of sick notes is undermined, the employee must provide concrete evidence of an existing illness and, if necessary, prove it.
• Employers should look out for irregularities when sick notes are submitted, as the newest developments in case law strengthen the employer’s position to successfully challenge sick notes.