A company questioned the illness of an employee and refused her salary despite a health insurance certificate.
The Federal Labor Court now says: That can be legal.
The Federal Labor Court has strengthened the rights of employers to question a certificate of incapacity for work (AU) * of their employees.
The responsible fifth senate decided on Wednesday in Erfurt against the background of a lawsuit from Lower Saxony that
doubts are justified if the sick leave goes hand in hand with a dismissal
(5 AZR 149/21).
Sick leave after termination: Employees may be denied salary
Employees who
submit a sick note immediately after being given notice
and who are absent from work until the period of notice has expired can therefore not automatically expect continued payment of their salary.
If an employee resigns and is still unable to work on the day of the dismissal, this can shake the evidential value of the certificate of incapacity, ruled the Federal Labor Court.
This applies in particular if the certified incapacity for work
precisely
covers
the duration of the notice period
.
Also read:
Sick Leave: Three Mistakes That Are Still Circulating.
Judgment on the case from Lower Saxony
The background to the judgment was a case from Lower Saxony.
The employee of a temporary employment company had given notice at the beginning of February 2019
at the end of the month and submitted an AU on the same day
.
In addition, according to the employer, on the day of the exhibition, she reportedly announced by telephone to a colleague in her company that she would no longer be coming to work.
There was no question of incapacity for work in the conversation.
The Lower Saxony State Labor Court had initially upheld the woman's claim and confirmed the right to continued payment of wages.
+
A certificate of incapacity for work (AU) is not necessarily sufficient evidence of the illness.
© Alexander Heinl / dpa
Incapacity for work certificates (AUs) are considered evidence of illness
If an employee becomes ill and unable to work, he will
initially
receive continued
pay and later sick pay
. However, the prerequisite is that he presents a medical report if he is ill for more than three days. The so-called yellow notes have the legal quality of a document and can be
used as relevant evidence in court
.
In Germany, millions of certificates of incapacity for work are issued every year. In 2020, members of the Techniker Krankenkasse alone registered a total of 5.28 million incapacity for work and 86 million days of absence. The AOK Absence Report 2019 shows that insured employees were absent for an average of 19.8 days due to an AU. As a result, dismissals due to illness, disputes about continued payment of wages or allegations of fraud in German courts are not infrequently an issue.
"It is quite a regular occurrence that disputes in labor court proceedings over illness-related inability to work in connection with dismissals," says Patrick Klinkhammer, specialist lawyer for labor law in Cologne.
Most of the time, however, it is either an error by the employee when submitting the yellow note, which the employer makes the subject of a notice of termination, or dismissals due to illness, which an employer has issued due to significant absences on the part of the employee.
"Doubting a medical certificate of incapacity for work is relatively rare,"
said Klinkhammer.
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The AU's probative value could decrease in the future
According to the expert, the constant case law gives an AU a high evidential value.
The employer can only shake this evidential value in narrow exceptional cases by raising
serious and objectively justified doubts about
the actual existence of the incapacity for work.
According to the judgment, one of these exceptional cases was the case from Lower Saxony.
From the point of view of the judges of the Federal Labor Court, the evidential value of the AU was shaken because it covered exactly the remaining term of the employment relationship.
The plaintiff then did not provide sufficient evidence that she was actually unable to work for the duration of the AU.
Overall, it is quite questionable
"whether the evidential value of the certificate of incapacity for work will continue to be maintained in the present extent in the next few years,"
said the Berlin specialist lawyer for labor law, Alexander Bredereck.
AU issued by telephone, for example, as permitted during the corona pandemic, worsened the probative value in court.
(dpa / as) * Merkur.de is an offer from IPPEN.MEDIA
.
More on the topic:
Serious change in 2021: The yellow AU certificate will be abolished - this is what employees expect.
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List of rubric lists: © Alexander Heinl / dpa
