Germany: Evidential Value of a Certificate of Incapacity for Work Issued Outside the EU

A sick note issued in a country outside the EU generally has the same evidential value as a sick note issued by a doctor in Germany. However, its evidential value may be undermined by the overall circumstances.

 

Background

The employee in the case at hand had worked as a warehouse operative for the employer since 2002. Shortly before the end of his holiday in Tunisia in the summer of 2022, he emailed the employer to inform him that he had been certified unfit for work by a local doctor. Consequently, he would be unable to return to work on time. However, the employer refused to continue paying his salary during his illness, as he doubted that the employee was actually unable to work.

 

Key Issues

The Federal Labour Court ruled that certificates of incapacity for work issued abroad outside the EU are generally considered to have the same evidential value as German ones. However, the foreign doctor must distinguish between illness and incapacity for work.

Furthermore, the evidential value of a certificate of incapacity for work may be undermined if an overall assessment of the case in question reveals circumstances that give rise to serious doubts about the certificate’s evidential value. The same principles apply in this respect as for a certificate of incapacity for work issued in Germany.

In this case, the Tunisian doctor certified the employee’s incapacity to work for 24 days without conducting a further examination. Furthermore, despite being advised to rest and prohibited from travelling, the employee undertook a long car journey home shortly before the end of his period of incapacity. Additionally, the employee had submitted incapacity certificates three times in the period from 2017 to 2020, each time immediately after taking holiday.

Due to these circumstances, the court considered the evidential value of the certificate to be impaired. In such case, the employee must prove that he is unable to work due to illness, e.g. by submitting further medical details and by exempting the treating doctors from professional confidentiality. This, in turn, is the prerequisite for the entitlement to continued payment of remuneration in the event of illness.

Practical Points

The decision of the Federal Labour Court provides clarity on how to deal with incapacity for work certificates from non-EU countries. Generally, they are suitable for proving an incapacity for work, unless it becomes clear from the certificate that there was no distinction between illness and incapacity to work and/or the entire circumstances undermine the probative value.