Germany Update: Shaking the probative value of a certificate of incapacity for work

It is not uncommon for employees to present the employer with a certificate of incapacity for work (AU certificate) that extends to the end of the notice period at the same time as a dismissal is issued. In such cases, it is reasonable to assume that in reality there is no inability to work, but that further work until the end of the contract should be avoided by means of a sneaky AU certificate. The Federal Labour Court (BAG) has now put a stop to such an approach – as announced by press release of 8 September 2021 – by its judgment of the same day (Az. 5 AZR 149/21):

“If an employee terminates his employment relationship and is incapacitated for work on the day of dismissal, this may shake the probative value of the certificate of incapacity for work, in particular if the certified incapacity for work precisely covers the duration of the notice period.” (Press release of the FOPH of 8 September 2021)

The decision was based on the following facts:

An employee terminated her employment relationship on 8 February 2019 at the end of 22 February 2019. At the same time, it submitted an AU certificate dated 8 February 2019, marked as an initial certificate, which covered exactly the remaining term of the employment relationship after the dismissal. The employer refused to continue pay due to what it considers to be the shaken probative value of the AU certificate, whereupon the employee sued for continued payment of remuneration until 22 February 2019.

The decision of the FOPH:

The BAG dismissed the employee’s action for payment. First of all, the employee proved her alleged incapacity for work by presenting an AU certificate, which was the evidence provided for by law in that regard.

However, the probative value of an AU certificate could be shaken by the employer if he explains and, if necessary, proves factual circumstances that give rise to serious doubts about the incapacity for work. If the employer succeeds in this, the employee must substantiate and prove that he was unable to work. In doing so, the evidence could be provided in particular by questioning the attending physician after appropriate exemption from the duty of confidentiality.

On the basis of these principles, the BAG considered the probative value of the employee’s AU certificate in the present case to be shaken. Thus, the “coincidence between the dismissal from 8 February to 22 February 2019 and the incapacity for work certified on 8 February to 22 February 2019” justifies a “serious doubt about the certified incapacity for work”.

Subsequently, the burden of presentation and proof of the employee’s incapacity for work, which had not been sufficiently fulfilled by the employee, was incumbent on him.

Result:

The decision of the BAG to shake the probative value of AU certificates in the event of coincidence of notice period and duration of incapacity for work is to be welcomed, not least because of its practical relevance. By changing the burden of proof in the event of a shaken evidential value, employers are made easier to defend against unjustified payment claims on the basis of obtained AU certificates. The BAG has correctly recognised that this must be possible in particular if the employee manifestly merely advances an incapacity for work in order not to have to continue working until the expiry of the notice period and has accordingly assumed a shock to the evidential value for such cases.

However, the decision of the BAG also has an advantageous effect on employers in the run-up to a possible procedure, as it makes it easier to assess when a remuneration payment can be refused despite the AU certificate submitted.

For details on the decision, see the press release of the FOPH of 8 September 2021: https://www.bundesarbeitsgericht.de/presse/erschuetterung-des-beweiswerts-einer-arbeitsunfaehigkeitsbescheinigung/

By Dominik Gallini, MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.

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