Federal Labor Court on the probative value of an AU certificate

Although the decision is somewhat older, it plays a role in numerous labor law disputes. It will therefore be briefly discussed below.

In its ruling of September 8, 2021, the Federal Labor Court decided that the high probative value of a certificate of incapacity for work may be shaken if an employee becomes incapacitated for work on the day of his or her own termination and, moreover, the certified incapacity for work precisely covers the duration of the notice period.


1. facts

In the proceedings, the parties disputed continued payment of remuneration for a period of approximately two weeks. The plaintiff was employed by the defendant company as a commercial employee.  

On 2/8/2019, the plaintiff notified her supervisor that she would not be showing up for work. The plaintiff also submitted a notice of termination on the same day, effective 2/22/2019. In addition, the plaintiff also submitted a certificate of incapacity for work for the period 2/8/2019 to 2/22/2019, inclusive. She subsequently also did not perform her work. The employer did not make any payments for the period from 8.2.2019 to 22.2.2019. 

The employee then brought an action for payment of continued remuneration for the above-mentioned period. The Labor Court of Braunschweig upheld the action. The Lower Saxony Regional Labor Court dismissed the defendant's appeal. The defendant's subsequently admitted appeal to the Federal Labor Court was successful.


Decision 2

Following a successful appeal, the Federal Labor Court upheld the claim.

According to the general rules, the employee bears the burden of presentation and proof for the existence of the eligibility requirements for continued payment of remuneration (Section 3 EFZG). As a rule, an employee can provide such proof relatively easily by submitting a certificate of incapacity for work (Section 5 EFZG). According to the established case law of the Federal Labor Court, a certificate of incapacity for work therefore also has a high probative value. This means that the competent court must first assume the correctness of the incapacity for work. Only if the employer succeeds in shaking the probative value of the certificate of incapacity for work must the employee again provide full proof of his incapacity for work.

Due to the coincidence in time of the notice period and the certified incapacity to work, the Federal Labor Court assumed that the value of the evidence had been successfully shaken in the specific case. In addition, the further presentation of the plaintiff regarding the alleged sleep disorders and the preliminary stage of burn-out was not sufficient in the opinion of the court.


3. conclusion 

Employers should keep an eye on the decision. In the case of "suspicious" certificates of incapacity for work, it may be worth taking a second look in the future. This is because the decision provides the employer with the necessary procedural means to deal with such certificates of incapacity for work. However, it should not be forgotten that, in our opinion, this is an "extreme" individual case. In practice, it will probably be rare for an employee to present such a meager case with regard to his or her illnesses in court. As shown, it is sufficient for the employee to present concrete evidence of the existing illnesses, their consequences and the therapy. As a rule, this is easily possible. The employer will then hardly succeed in invalidating this presentation.  

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