Federal Labor Court makes “windfall effects” more difficult when dismissal
Most employers are familiar with the phenomenon: an employee quits. The next day a certificate of incapacity for work arrives in the mailbox. The Federal Labor Court has now condemned this unfortunately widespread practice with a current ruling dated September 8th, 2021 (Ref.: 5 AZR 149/21) at least partially put a stop to it.
What happened? A commercial employee terminated her employment with the relevant 14-day notice period. In addition, the employer received a certificate of incapacity for work from the employee, issued on the day the letter of termination was handed over and for exactly the duration of the notice period. The company understandably did not believe that the illness was actually present and refused to continue paying wages.
Rightly so, as the Federal Labor Court decided. First of all, the Federal Labor Court once again clarified the established case law, according to which an employee can generally prove his illness by presenting a certificate of incapacity for work. However, the employer can undermine the evidentiary value of the certificate of incapacity for work. However, the case groups developed so far in case law do not reflect the illness in the employment relationship that expires after termination. The Federal Labor Court has now changed this. According to a press release from the Federal Labor Court, an illness that occurred during an employment relationship that was terminated by the employee is “particularly” likely to undermine the evidentiary value of a certificate of incapacity for work if the sick note corresponds exactly to the notice period. In practice, this will almost never be the case. Notice periods are regularly longer than 14 days, whereas certificates of incapacity for work are usually issued for a maximum of 14 days. Nevertheless, from the employer's perspective, there is reasonable hope of being able to counteract "sick celebrations" during the notice period in the future. From our point of view, it can be concluded from the word “in particular” in the press release that the Federal Labor Court does not only want to assume that the evidentiary value is shaken if there is complete agreement between the certificate of incapacity for work and the notice period. In particular, the case in which an employee falls ill as a direct reaction to an employer's dismissal and then no longer returns to work (possibly through several successive certificates of incapacity for work) until the end of the notice period should be equated with the case decided by the Federal Labor Court. This is the most common situation in practice. Of course, the employee could argue that the employer's termination led to him becoming mentally ill. However, the case decided by the Federal Labor Court was also based on mental illness. More details will only be available once the full reasons for the decision are available.
Employers should therefore consider initially stopping continued payment of wages in the event of illnesses that occur in response to terminations. The employee may not be able to win a lawsuit brought by him simply by presenting a certificate of incapacity for work. He has to “stretch” considerably more and release the treating doctor from his duty of confidentiality. If the treating doctor confirms the existence of an illness as a witness, continued payment of the salary must be made. However, the employee is not always able to provide relevant witness evidence. Even in the case decided by the Federal Labor Court, the employee was unable to do this, so in the end she came away empty-handed.
