Undermining the probative value of a certificate of incapacity for work

It can be assumed that sick leave in German companies will remain at a high level in the new year. In addition to staff shortages, this also entails considerable financial burdens for employers in the form of continued payment of wages. Against this backdrop, it is hardly surprising that labor courts are increasingly dealing with cases in which the accuracy of a certificate of incapacity for work is questioned.

According to case law, certificates of incapacity for work have a high probative value; proof of incapacity for work is usually provided by the presentation of a medical certificate. However, this probative value can be undermined if there is suspicion that the incapacity for work is feigned.

If the employee is not actually unable to work due to illness, the employer can withhold wages or reclaim wages already paid.

In order to undermine the probative value of the certificate of incapacity for work, the employer must present actual circumstances and, in the event of a dispute, prove that there are significant doubts as to the existence of the employee's incapacity for work due to illness.

According to the highest court rulings, such doubts are particularly warranted if

• the employment relationship is terminated by the employer or the employee and the sick note continues until the end of the notice period;
• a fixed-term employment relationship is not extended and the sick note continues until the end of the employment relationship;
• the sick note violates the provisions of the incapacity for work guideline, for example because the regular maximum duration of the sick note of two weeks is exceeded or the sick note is retroactively dated in an inadmissible manner.

The probative value of the medical certificate may also be undermined by an overall assessment of the actual circumstances of the claimed incapacity to work, even if the individual circumstances taken alone are not sufficient to call the probative value into question or predate the employee's alleged illness. There is evidence to undermine the probative value if

• an employee takes sick leave after receiving an unpleasant instruction, for example because he is to work at a new place of work or take on a new task. The same applies in the case of immediate sick leave following a personnel meeting that the employee considers stressful or problematic;
• the employee's behavior contradicts the medical certificate, e.g., if the employee goes on a trip even though the doctor has certified that they are unfit to travel;
• repeated periods of illness in the past occurring close to recreational leave indicate that the employee is merely pretending to be unfit for work;
• Statements made by the employee contradict the medically certified incapacity to work;
• An employee is either conspicuously frequently or always only on sick leave for short periods of time, or the start of the incapacity to work is often on a Monday or Friday (“unauthorized weekend extension”).

In the cases described above, employers should critically examine and carefully document the circumstances before considering further steps, such as refusing to continue paying wages or reclaiming wages already paid (if necessary, through legal action).

However, undermining the probative value of a medical certificate only leads to the exclusion of the entitlement to continued payment of remuneration if, after the probative value has been undermined, the employee is unable to prove the existence of an inability to work due to illness by presenting specific facts and circumstances, such as the extent of health restrictions, the medical diagnosis, the prescribed medication, and the prescribed therapeutic measures. Simply releasing the doctor from his duty of confidentiality by the employee does not satisfy the requirements for proving the existence of an inability to work due to illness.