New rules for continued payment of remuneration in the event of illness
Employers know it well enough: No sooner has a dismissal been announced than the employee concerned falls ill. The certificate of incapacity for work submitted is sufficient to prove the illness. An application for a review of the incapacity to work via the health insurance company comes to nothing, as is usually the case, as the medical service of the health insurance companies, for capacity reasons alone, could only become active when the employment relationship had already ended.
Nevertheless, the Federal Labor Court (“Bundesarbeitsgericht” = BAG) has now further developed its case law on this issue in a way that is pleasing for employers. It is true that a properly issued certificate of incapacity for work continues to have a high evidential value. It is therefore not sufficient to simply deny the inability to work. However, if the employer can present and prove circumstances that cast serious doubt on the employee’s illness, the evidential value of the certificate of incapacity for work is shaken. The employee must then prove that he was actually ill. According to a decision of the BAG dated 13.12.2023 (Ref.: 5 AZR 137/23), this requires a substantiated presentation, e.g. which illnesses were present, which health restrictions existed and which behavioral measures or medication were prescribed by a doctor. The employee must therefore describe, at least in layman’s terms, in relation to the entire period of continued remuneration, which specific health impairments existed and what effects they had on his ability to work.
In its ruling of 13.12.2023, the BAG also further refined the grounds on which serious doubts about the existence of an illness can arise. Accordingly, serious doubts exist not only in the case of an accurate certificate of incapacity for work issued on the day of the employee’s own termination of employment regarding the remaining duration of the employment relationship. Rather, there may be serious doubts about the probative value of a certificate of incapacity for work even if several certificates are submitted for the duration of the notice period. It is also not decisive whether the termination was declared by the employer or by the employee himself.
This welcome development in case law does not yet appear to be at an end. On the contrary, it should make it easier for employers to challenge the probative value of a certificate of incapacity for work in other circumstances as well, e.g. in the case of careless comments made to colleagues on the last day before an illness, early departure or packing up all personal belongings on the last day before an illness.
The times when it was usually impossible for employers to defend themselves against unjustified claims for continued remuneration are now over. This is also reflected in the case law of the courts, which consistently implements the requirements of the BAG.