Germany: Online Sick Leave Without a Doctor’s Consultation May Justify Termination Without Notice

A certificate of incapacity for work obtained online without consulting a doctor does not meet the requirements of the Incapacity for Work Guideline, which sets out the medical standards. In such a case, a warning is unnecessary due to the seriousness of the breach of duty, and termination without notice is justified.

The Federal Labour Court has recently changed its case law regarding the evidential value of certificates of incapacity for work. Whereas medical certificates of incapacity for work used to have almost unrestricted evidential value, it is now recognized that concrete doubts alone can be sufficient to undermine this value. Such doubts may arise in particular from temporal connections, contradictory behaviour on the part of the employee, or circumstances surrounding the issuance of the certificate. As a result, the employee bears a greater burden of proof and explanation for the existence of incapacity for work.

 

One of the reasons for this change in case law is the existence of websites where certificates of incapacity for work can be purchased. Symptoms, suspected illness, and the expected duration of illness are selected by the purchaser, making it easy to obtain a supposedly valid certificate that allows the purchaser to take several days off work with continued pay. In a recent ruling, the Hamm Regional Labour Court has now gone even further than previous case law on this issue and considers even summary dismissal to be justified in such cases under certain circumstances.

 

Background

In the present case, the employee had reported sick to his employer for one week. He purchased a certificate of incapacity for work online. The online provider’s website offered a certificate without a doctor’s consultation and one with a consultation, with the certificate without a consultation incurring higher costs. In addition, there was a comment stating that, in the case of a certificate without a doctor’s consultation, the employer should be asked to accept the incapacity to work immediately, especially if they suspect something.

The employer initially continued to pay the employee’s salary for the certified period. Later, suspicions arose that the certificate submitted could be a forgery, among other things because no certificate of incapacity for work could be retrieved via the electronic data exchange with the health insurance company. The employer then terminated the employment relationship without notice, alternatively with notice.

The court of first instance upheld the action for unfair dismissal brought against this termination. It found that there were no important reasons as required by Section 626 para. 1 of the German Civil Code (Bürgerliches Gesetzbuch – BGB). Upon appeal by the employer, the court of second instance amended the judgment and dismissed the action.

 

Key Issues

The court ruled that by submitting a certificate of incapacity for work obtained online without consulting a doctor, the employee had deliberately misled the employer about a medical consultation, thus constituting good cause for termination without notice.

In the court’s opinion, the decisive reasons were that the employee had failed to fulfil his secondary obligation under his employment contract to provide proper proof of incapacity for work. The certificate submitted falsely suggested that a medical consultation had taken place, although it had been issued solely on the basis of an online questionnaire without any contact with a doctor. However, according to the incapacity for work guideline, which sets out the medical standards, a personal or indirectly personal medical history taken during a video or telephone consultation is required. The employee knew that the certificate he submitted did not reflect any contact with a doctor and accepted that the employer was being deceived.

In addition, this certificate without medical contact was even more expensive than the version with medical contact. The employee therefore considered it worth the money not to have to speak to a doctor, but to obtain a certificate in a simple manner. This reinforced the impression of deliberate deception of the employer.

Since the certificate did not meet the requirements of the incapacity for work guideline, the court considered its probative value to be undermined. The employee then failed to meet his burden of proof following the undermining of the probative value, as he had not provided evidence of any specific health restrictions.

Practical Points

• The ruling provides further relief for employers in disputes over periods during which employees are unable to work due to illness. If the employee can be accused of deliberately deceiving their employer, termination without notice may even be justified.
• Employers can therefore check and question certificates of incapacity for work that they find suspicious, so that the burden of proof for the actual existence of incapacity for work then lies with the employee again. The employee can then, for example, release their doctor from their duty of confidentiality in order to prove their incapacity for work.
• In this context, employers are particularly advised to inform their employees that certificates obtained on the Internet without a consultation with a doctor are inadmissible in any case and that such certificates will be interpreted as attempted deception of the employer in the future. In this case, there is a good chance that the employer’s action in the form of termination without notice will be recognized as justified by the courts.