Shutterstock / - Yuri A

While medical certificates have long been considered by labor courts as (almost) irrefutable evidence of incapacity for work certified therein, two years ago, the Federal Labor Court decided in a landmark ruling for the first time that employers could indeed undermine the probative value of medical certificates of incapacity for work by presenting circumstances that give rise to serious doubts about the incapacity for work. In its decision of September 8, 2021 (Ref.: 5 AZR 149/21), the Federal Labor Court initially ruled that such grounds undermining the probative value may exist, for example, when an employee resigns voluntarily and their sick leave is certified to last precisely until the day their notice period ends.

With its most recent judgment, the German Federal Labor Court clarified that the same can apply even if the termination is issued by the employer. In such cases, depending on the circumstances, the “precise” sick leave until the end of the notice period may give the employer the right to question the incapacity for work. As a consequence, employees must provide concrete proof of their sickness in the event of a dispute in order to be able to claim continued payment of remuneration for the corresponding periods of absence.


In the case underlying the most recent decision, the subsequent plaintiff initially reported sick for the period from May 2 to May 6, 2022, submitting a corresponding medical certificate of incapacity for work. The employer terminated the employment relationship effective at the end of the calendar month with a letter dated May 2, 2022, which the plaintiff received the following day. After receiving the notice of termination, the employee submitted two subsequent medical certificates of incapacity for work, continuing his sick leave until the termination date which was May 31, 2022. Immediately on the following day, however, the plaintiff started a new job.

The employer doubted the legitimacy of the submitted certificates and consequently refused to continue to pay the employee’s remuneration. However, the employer’s reasoning was unsuccessful in the lower courts and the plaintiff was awarded the continued remuneration claim in full.

However, the 5th Senate of the German Federal Labor Court did not agree with this view. Rather, it largely followed the view of the defendant and ruled that the probative value of the two follow-up medical certificates, which were issued after receipt of the notice of termination, was shaken and that they were therefore not able to prove the inability to work claimed by the plaintiff.

The judges in Erfurt explained that a comprehensive consideration of all circumstances of the individual case is always required. Employers could undermine the probative value by presenting and, if necessary, proving factual circumstances which, when considered as a whole, would give rise to serious doubts about the inability to work. Such doubts would also exist if an employee who had already been on sick leave submitted follow-up certificates after receiving a notice of termination which, as a result, precisely covered the duration of the notice period and he took up new employment immediately after the notice period ended and the termination went into effect.

Consequently, the German Federal Labor Court did not see the probative value of the initial certificate as undermined, given the lack of a recognizable connection between the incapacity for work and the termination. However, for the two subsequent certificates, such a connection was established. The precise dates of the sick leave and the immediate commencement of new employment thereafter were sufficient indications to cast doubt on the legitimacy of the submitted medical certificates.

As a result, it was justified to impose the full burden of proof for the actual existence of an incapacity to work due to sickness on the plaintiff.

With this decision, the German Federal Labor Court provides further clarity on the circumstances under which employers can successfully challenge a certificate of incapacity for work. After it had already been established that the submission of a certificate of incapacity for work precisely dated for the notice period together with a termination by employees could give rise to such doubts, it is now clear that the same can also undermine the probative value of corresponding certificates in the case of terminations issued by the employer.

It is important to note, however, that employees can still meet their burden of proof, for example by releasing the issuing doctor from their duty of confidentiality. Unlike in the past and in view of the more recent case law of the Federal Labor Court, employers are no longer in a hopeless position when it comes to taking action against dubious certificates of incapacity for work.

(c) 2023 Shutterstock by – Yuri A



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