Current BAG decision: loss of probative value of medical certificate after notice of termi-nation


The Federal Labour Court (Bundesarbeitsgericht, BAG) recently had to deal with the probative value of a medical certificate (in German ‘Arbeitsunfähigkeitsbescheinigung’ or ‘AU’ in short) and decided that the probative value of the medical certificate may be lost if an employee gives notice that he is resigning and is written off sick as unfit for work on the day of the resignation. This applies in particular if the period covers exactly the duration of the notice period. Employees must then explain and prove their incapacity for work (decision of 8 September 2021, 5 AZR 149/21).

Probative value of sick note

If an employee is incapacitated for work, the wage initially continues to be paid. However, there is a requirement pursuant to Section 5 (2) Sentence 2 of the German Continued Payment of Wages and Salaries Act (Entgeltfortzahlungsgesetz, EFZG), that in the event of incapacity for work lasting longer than three days, the employee must submit to the employer a "medical certificate confirming the existence of the incapacity for work and its probable duration". If the employee does not submit such a certificate, the employer is entitled to withhold the continued payment of wages. If proceedings are then instituted and the employee asserts his or her claim to continued payment of wages, he or she bears the full burden of presenting and proving the facts. However, case law considers the medical certificate to serve as prima facie evidence that consequently eases the burden of proof. This means that the actual existence of the fact that is to be proven - the incapacity for work in the present case - is regularly concluded from the certificate. The sick note therefore has high probative value. Only in very exceptional cases can the employer refute this probative value by presenting and, if necessary, proving circumstances which give rise to serious and objectively justified doubts as to the actual existence of the incapacity for work. Examples of this are more frequent events of incapacity for work in connection with holidays, working in a competitor company during incapacity for work, or ‘skiving off’ with prior notice. If the employer succeeds in refuting the prima facie evidence, the easing of the burden of proof is no longer applicable and the initial situation then applies again: The employee bears the full burden of presenting the facts and proving the existence of incapacity for work. The evidence can then be taken, for example, by hearing the attending physician after accordingly releasing him or her from the duty of confidentiality.

Decision of the BAG on the loss of the probative value of a medical certificate

The BAG has now added another scenario to the range of exceptional cases.

An action was filed by a commercial employee from Lower Saxony. The female employee of a temporary employment agency had resigned at the beginning of February 2019 to take effect at the end of the month and had filed a medical certificate on the same day. According to the employer as the defendant, on the day the medical certificate was issued she announced to a co-worker by telephone that she would no longer be coming to work. There had been no mention of incapacity for work in the conversation. The employer doubted the medical certificate and refused to continue paying wages. The employee, on the other hand, argued that she had been properly certified as sick and had been facing burnout. She claimed continued pay. Contrary to the decision of the lower courts, the BAG ruled in favour of the employer and dismissed the action.

In the opinion of the BAG, the defendant employer had refuted the probative value of the medical certificate. There was serious doubt as to the certified incapacity for work since the medical certificate covered exactly the period of the employment relationship remaining after the claimant's own notice of termination. The employee was then unable to provide sufficient evidence that she was actually incapacitated for work during the period in question. Accordingly, the employer was not obligated to continue paying wages.

Legal assessment

For employers, the BAG's decision is to be welcomed as it makes it more difficult to provide evidence in these cases, which are more frequently encountered in practice, i.e. incapacity for work after notice of termination. In our opinion, the decision of the BAG is of broader significance. In comparable cases, too, the mere presentation of the medical certificate is likely in future to no longer be sufficient to create the appearance that there is actually an incapacity for work. Instead, employees will probably have to present the court with more specific information on the nature and duration of the incapacity for work and, if necessary, obtain additional medical certificates.

Achim Braner

Achim Braner
Frankfurt a.M.
+49 69 27229 23839

Nadine Ceruti

Nadine Ceruti
Frankfurt a.M.
+49 69 27229 24795